author: Bloodworth, J.

text:
    17102.
    Mayor and Council of Washington v. Wilkes County.
    Decided October 5, 1926.
    Rehearing denied November 9, 1926.
    Complaint; from Wilkes superior court — Judge Perrj'man. December 2, 1925.
    Application for certiorari was denied by the Supreme Court.
    The petition of Wilkes county against the mayor and council of tlie City of Washington was filed April 10, 1925. It alleges in substance that under the laws and regulations creating the Highway Department of Georgia and under the act of Congress approved July 11, 1916, and the rules and regulations of the secretary of agriculture, the several counties of this State became entitled to Federal aid in constructing a system of highways in the State, the plan of assistance being that the Federal government would appropriate one half the cost of constructing such highways as might be approved by its engineer or the engineers of the State Highway Department; that Wilkes county placed itself in position to procure Federal appropriations for use on roads in the county, and that on or about March 10, 1919, the' defendants endeavored to procure assistance in completing the pavement on certain streets within the limits of the municipality, but the authorities of the State Highway Department and the bureau of Federal aid refused such assistance unless the municipality would empower Willses county to negotiate for such Federal aid and a contract for the laying of the pavement would be made by and through Wilkes county on behalf of the municipality; that thereupon the municipality passed a resolution (attached to the petition) authorizing and empowering Wilkes county to act as agent of the municipality in contracting with the State ■ Highway Department for the pavement, and agreed “to appropriate a,sum up to $25,000 for said purpose, the same to be paid out of the assessments of the adjacent property owners along the streets paved, and the balance of said sum to be paid out of the general tax funds to be raised during the year 1919;” that the effect of obtaining such Federal aid was to reduce the cost of said paving to the property owners of the municipality, in that theretofore each adjoining owner had been required to pay one fQurth of the cost of the paving adjoining his property, the property owner on the opposite side of the street one fourth, according to frontage, and the remaining half of the cost had been borne by the municipality as a whole, whereas by the obtaining of Federal aid through- Wilkes county, the burden of paying a half of the paving cost was lifted from the municipality and transferred to the fund derived from Federal aid; that the municipality possessed the legal right to provide for paying for the pavement, “having at the time the contract was entered into for the paving of same funds in the .treasury with which to meet said costs, and having provided for whatever amount was lacking by an assessment to be levied on the adjacent property owners, with which said funds a sufficient amount was or could be made available for the payments required to match the assistance granted from Federal aid;” that having been empowered by the municipality to enter into a contract fqr said paving, Wilkes county entered into a contract for the same (a copy of which, dated September 11, 1920, and the parties to which are Wilkes county and the Smith Construction Company, is attached to the petition), the sole inducement being the resolution and the contract between Wilkes county and the municipality providing for the laying of the pavement and the obtaining of assistance from the Federal aid fund; that the county, having entered into said contract for the municipality, proceeded to 'carry out the contract, and met the cost of said paving to the extent of one half of the cost, the other half being paid to the county by the bureau of Federal aid through the State Highway Department; that the defendants, after receiving from the county the benefit of Federal aid, neglected and refused to carry out their contract with the county and to furnish one half of the cost of said paving, and the same was paid by the county to the contractors laying the same, although the contract was made solely for the defendants and for their benefit; that subject to certain credits placed upon the contract since the completion of the paving, the amount paid by Wilkes county for and in behalf of the defendants and which is legally due by the defendants is $17,001.39, with interest, as shown by an itemized statement attached to the petition.

      Appeal and Error, 4 O. J. p. 937, n. 6.
    Contracts, 13 C. J. p. 715, n. 90.
   Bloodworth, J.

Back of this suit stands a valid and legal contract, upon which it is based. Mayor &c. of Washington v. Faver, 155 Ga. 680 (117 S. E. 653); Faver v. Mayor &c. of Washington, 159 Ga. 568 (126 S. E. 464). The allegations of the petition as amended show a cause of action which is not barred by the statute of limitations, and the court did not err in overruling the general and special demurrers to the petition. Judgment affirmed.

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

It is further alleged, that the defendants, having provided for the cost of the paving by a fund in the treasury and by the assessment of a tax against the adjacent property owners, and having allowed the pavement to be laid and accepted the benefits therefrom, are liable in equity and good conscience to Wilkes county in the sums due for the paving, the contract having been fully completed and carried out; that as a recognition'of said indebtedness to petitioner the defendants, on October 12, 1920, executed a written instrument as follows: “$10,000.00. October 12th, 1920. March 1st, 1921, after date pay to the order of Board of Commissioners of Wilkes county ten thousand dollars, value received, and charge to account of mayor and council of Washington, Georgia. S. R. Brooks, Clerk C. C. Accepted, K. A. Wilheit, Mayor;” that the said acceptance was intended as a credit on the said indebtedness, but that the same was never paid; that it was executed as a part of the contract relating to the said pavement, and was intended, if paid, to go as a partial credit thereon; that by resolution of October 14, 1919, the defendants recognized and provided for the payment of the indebtedness to be incurred by Wilkes county in its behalf by a resolution (a copy of which is attached to the petition), but no sums have been paid to petitioner under that resolution, and the defendants have refused and neglected to enforce the same, though many of the property owners against whom assessments have been made are ready and willing to pay all sums due thereunder; that defendants have refused to accept said sums and have actually returned to the property owners payments made, and have refused to pay any sum to petitioner other than as alleged; and that, Wilkes county having fully carried out its contract made for and' in behalf of defendants, and having paid the cost of the improvements of which defendants have received the benefit, and the sums so paid being solely for the use and benefit of defendants, they are liable to petitioners for the amount stated, less any payments thereon. The substance of the first-mentioned resolution and of the contract of September 11, 1919, between the county and the Smith Construction Company, is set out in the statement of facts in the-case of Mayor &c. of Washington v. Faver, 155 Ga. 680.

The petition as originally filed and as amended was demurred to generally and specially, and in this court the following grounds of demurrer were relied on in the brief of counsel for the plaintiff in error: (1) No cause of action is set forth. (2) It appears from the petition that the alleged contract between the city and the county is not valid or enforceable. (3) If the plaintiff has a cause of action, it is not the form of action alleged. (4) It appears from the petition that if the city is indebted to the plaintiff by reason of the facts set out, the city is restricted to a particular method of .raising funds to pay the indebtedness, to wit: payment of the city’s proportionate part of the cost of the paving can be made from funds raised by levying assessments against the abutting property, and from such funds and in such manner only, and the petition does not show that this fund has been raised by the city and is in the treasury of the city subject to its alleged obligation to the county. (5) It appears from the petition that the alleged cause of action is barred by the statute of limitations. (6) The alleged contract on which the suit is based is not set forth, and the allegations as to the contract are but conclusions unsupported by pleaded facts. (7) The petition is dupliciteras, in that it undertakes to declare- upon two separate and ■distinct causes of action, the one on an alleged contract, and the other in assumpsit for money had and received.

By amendment it was alleged, that, the defendants having constituted Wilkes county their agents to let the contract for the paving aforesaid, the county entered into the said contract with the Smith Construction Company; that the said contract embraced, among others, projects 61-A and 62, and that work on these two projects began about December 1, 1919, and the final estimate was. made about September 30, 1920, though they were not then accepted; that the pavement known as project 61-A was not satisfactory as first laid, and the assessments levied against the same were enjoined by the property owners in a proceeding in Wilkes superior court entitled Booker et al. vs. Mayor and Council of Washington, and on July 5, 1920, a consent decree was rendered, dismissing the petition for injunction. From the decree it appears that the assessments in question had been revoked and cancelled, and that it was agreed that they had been prematurely made, and that compliance with the conditions of the contracts and specifications for the pavement could not be determined before February 15, 1921, and that no new assessments should be levied on account of such paving before February 15, 1921. It was alleged that the defendants “thus expressly-recognized the fact that said demand of Wilkes county would not be presented and was not due until after such daté as stated in this decree as made with other parties,” and that no demand was made by plaintiff on defendants until long after that date; that the plaintiff as agent of the defendants did not finally settle with the contractors until July 19, 1921; that there was then due the contractors $15,904.77, but the plaintiff had no funds to pay the same, and delivered the trade acceptance for $10,000, before mentioned, as a payment on the contract, this acceptance being made to fall due after the time within which the pavement was to be tested; that the plaintiff on January 28, 1921, paid to the contractor $13,500 and the balance due was not finally adjusted with the contractor until July 19, 1921; that the defendants failed to pay the said trade acceptance, which became due March 1, 1921, and written demand for payment of the entire sum due, to wit $15,904.77, was made on the defendants on September 6, 1921, and, payment being refused, suit was thereupon begun in favor of Wilkes county against the defendants; that in the meantime a second petition for injunction was filed by the property owners against the mayor and council of Washington, which suit was pending at the February term, 1922, under the name of Faver et al. v. Mayor and Council of Washington, and which was twice before the Supreme Court, and by written agreement of counsel the suit of Wilkes county was continued pending a determination of these cases by the Supreme Court, and that after their determination the plaintiff on March 13, 1925, dismissed the suit voluntarily; that while the plaintiff does not plead that suit as tolling the statute of limitations (admitting that it was defective), it is referred to as showing diligence and as explanatory of the delay in bringing the action to trial; that the present action was filed April 10, 1925, less than four years from the time said demand was presented and payment demanded of defendants and within less than four years of the accrual of said cause of action. It was further alleged that, there being an indebtedness existing between plaintiff and defendants by reason of the said amounts due for the paving, the defendants extended credit to plaintiff by charging plaintiff with the lights and water used by Wilkes county for its public buildings, beginning December 20,' 1920, and extending to “the present time,” as shown by an itemized statement exhibited; that the sole consideration of said credit was the demand already existing against the defendants, and that the indebtedness dire the plaintiff and the credit extended by the defendants by reason of said indebtedness constituted mutual accounts between the parties, and for this reason the' bar of the statute of limitations has not attached and does not run against the indebtedness due the plaintiff. It was further alleged that, the plaintiff being agent of the defendants and having entered into a written contract in their behalf, became, upon its payment of the same, subrogated to all the rights of the party with whom the contract was made, and that, the payments having been made because of the default of the principals, the defendants can not fake advantage of their own default as against their agent, and that the statute of limitations does not run against said debt.

The'demurrer was overruled except as to certain special grounds which the plaintiff was allowed to meet by amendment; and the defendants excepted.

B. W. Fortson, for plaintiffs in error. C. E. Button, contra.


source: Caselaw Access Project

license: Public Domain

text:
    17179.
    NEVILLE v. NATIONAL LIFE & ACCIDENT INSURANCE CO.
    1. Tlie general rule, that erroneous instructions to a jury are not rendered harmless , by correct instructions given in another part of the charge unless the judge directs the attention of the jury to the erroneous charge and withdraws it, is subject to the qualification that the charge complained of must be on a material issue and calculated to mislead the jury.

      (a) An excerpt from a charge should be considered in its relation to its context; and where a sentence standing alone is erroneous because of what is palpably a mere “slip of the tongue,” and could not mislead any intelligent man on the jury, the error is harmless.
    2. There was evidence to support the verdict, and the judge of the superior court erred in sustaining the certiorari and ordering a new trial.
    New Trial, 29 Cyc. p. 788, n. 3.
    Trial, 38 Cyc. p. 1603, n. 59; p. 1778, n. 73; p. 1779, n. 76; p. 1782, n. 82; p. 1784, n. 87.
    Decided October 5, 1926.
    Rehearing denied November 9, 1926.
    Certiorari; from Bibb superior court — Judge Malcolm D. Jones. January 30, 1926.
    In the municipal court of Macon Alice Neville sued the National Life & Accident Insurance Company on an insurance policy. The ease was twice tried in that court. On the first trial the verdict was for the plaintiff. A new trial was granted, and on the second trial the jury found in favor of the plaintiff, for $180, the amount sued for. The insurance company then sued out certiorari, alleging that the verdict was erroneous for two reasons: (1) Because it “is contrary to the law and to the evidence, and is decidedly and strongly against the weight of the evidence, .and is without any evidence to support it.” (2) Because of the following charge to the jury: “This condition of the policy, that the assured should be in sound health when the policy was issued, would not be operative and binding in law even though the assured did not know, when she made her application, that she was not in sound health, if you find she was not in sound health. If she was in unsound health at' the time, whether she knew it or not, she wouldn’t be entitled to recover the full amount of the policy, but only the amount of the premiums paid.” The judge of the superior court sustained the certiorari and ordered a new trial, and the plaintiff excepted.

      R. D. Feagin, for plaintiff.

      Martin, Martin & Snow, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) The record properly presents two questions only for determination by this court: 1st. Should a new trial have been granted because of the error in the charge? 2d. Is there evidence to support the verdict? The second of these questions is sufficiently answered in the second headnote, and we will enlarge upon the first headnote only. The policy sued on contained the following clause: “No obligation is assumed by the company prior to the date hereof, nor unless on said date the assured is alive and in sound health.” The defendant on the trial contended that because of this provision the policy never became a valid, binding obligation in law, due to the fact that on the date of the policy the insured was not in sound health. Near the close of the charge to the jury they were told that “This condition of the policy, that the assured should be in sound health when the policy was issued, would not be operative and binding in law even though the assured did not know, when she made her application, that she was not in sound health, if you find she was not in sound health. If she was in unsound health at the time, whether she knew it or not, she wouldn’t be entitled to recover the full amount of the policy, but only the amount of the premiums paid.” Immediately after this charge and while the jury were still in the box counsel for the insurance company called the attention of the judge to the fact that “the language of the court specifically relating to the condition was couched in the negative, whereas it should have been in the affirmative.” The judge answered that he did not think this made any difference, and did not call the attention of the jury to the error or withdraw from them the erroneous instructions. The insurance company insists that this part of the charge was erroneous. Counsel for the plaintiff admits this, but insists that, “taking the entire charge and the portion excepted to, it is as clear as the noonday sun that the jury understood that the court was telling them that it made no difference whether Cilla Dow knew she was in unsound health when the policy was issued or not, yet if she was actually in unsound health, the plaintiff could not recover in the case more than the premiums. De minimis lex non curat. Even if the judge of.,the municipal court got his words mixed and made a slip of the tongue, it was an innocuous and harmless slip that could not possibly have misled the jury or harmed' the defendant.” Preceding the charge complained of the judge had several times given to the' jury the correct rule applicable to the condition of the policy, and immediately following the erroneous instruction he told the jury that “If she (the assured) was 'in unsound health at the time, whether she knew it or not, she wouldn’t be entitled to recover the full amount of the policy, but only the amount of the premiums.” The plaintiff in error insists that the erroneous charge was a mere “slip of the tongue.” In Hoxie v. State, 114 Ga. 23 (6) (39 S. E. 945), the Supreme Court said: “In charging upon the law of self-defense, the trial judge inadvertently used the name of the accused, when evidently intending to refer to the deceased. It was palpably a mere slip of the tongue, and, viewed in the light of what the judge said in this immediate connection, could not possibly have misled or confused any intelligent man sitting as a juror.” See Duke v. Hogan, 155 Ga. 360 (1) (116 S. E. 598), and citations. In Suple v. State, 133 Ga. 601 (1) (66 S. E. 919), it was held: “An excerpt from a charge should be considered in relation to its context; and where the context removes all probability of an erroneous impression which might be created by the excerpt as an isolated fragment, a new trial will not be granted.” Mr. Justice Beck, speaking for the court, in Britten v. State, 124 Ga. 783 (53 S. E. 99), said: “It has been repeatedly ruled by this court that an attack upon the charge of a court by culling therefrom isolated clauses and sentences, which, if taken alone, would be erroneous, will not be entertained when, immediately preceding or following such objectionable extracts, they are so qualified -by the language of the court as to correctly state the law of the ease.” See Gaston v. Gainesville &c. Ry Co., 120 Ga. 516 (5) (48 S. E. 188). While the appellate courts of this State have frequently held that “where an erroneous principle of law is charged as to.a material issue, the error is not rendered harmless by a subsequent statement of the correct principle, unless the judge expressly calls the attention of the jury to the incorrect statement and retracts it,” this rule is not without its qualifications. The rule, with the qualifications, is laid down in Western & Atlantic Railroad Co. v. Clarke, 117 Ga. 548 (44 S. E. 1), as follows: “Where an erroneous rule of law is given to the jury on a material issue in the ease, and is of such a nature as is calculated to mislead them,' a new trial will be granted notwithstanding the correct rule may-have been announced in other portions of the charge.” (Italics ours.)

Under all the circumstances in the case and in the light of the. foregoing rulings, we can not believe that the excerpt from' the charge of which complaint was made in this case, when considered in connection with the context, was calculated to mislead the jury. The error was harmless.

Judgment reversed.

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


author: Broyles, C. J.

text:
    17351.
    SOUTHERN RAILWAY COMPANY v. GENTLE.
    Refusal to declare a mistrial because of the improper argument of counsel was harmful error.
    Trial, 38 Cyc. p. 1500, n. 31 j p. 1506, n. 75.
    Decided October 5, 1926.
    Action for damages; from Hall superior court — Judge J. B. Jones. March 20, 1926.

      J. O. Adams, Ed. Quillian, O. J. Lilly, A. G. Wheeler, for plaintiff in error.

      Hoke Smith, B. P. Gaillard Jr., F. M. Bird, contra.
   Broyles, C. J.

Gentle obtained a substantial verdict for personal injuries against the Southern Railway Company. The defendant’s motion for a new trial was overruled, and to this judgment it excepted. One of the grounds of the motion was as follows: “Upon the trial of the case brought by H. S. Gentle vs. Southern Railway Company, upon which a verdict and judgment was rendered in favor of the plaintiff, H. S. Gentle, and against the defendant, Southern Railway Company, now movant, the court erred in the following particulars: Hon. B. P. Gaillard, of counsel for plaintiff,' in his argument to the jury, in referring to what is known as the safety-appliance act, used the following language: ‘ Gentlemen of the jury, this is one of the wisest and most beneficent laws ever passed by Congress, or any other legislative body. Oh! the railroads fought it, of course they did, as they always have and-always will, wherever money is on one side and human, life and safety is on the other, or where an ancient wrong is proposed to be overthrown.’ Counsel for movant objected to the use of this language in the argument of counsel for plaintiff, on the ground that there was no evidence in the record concerning railroads fighting this legislation, that it was highly prejudicial to the rights of the defendant in this case and could not in any wise illustrate the issues involved, and the court was requested to declare a mistrial and withdraw the case from the consideration of the jury. Counsel for plaintiff then stated: ‘ Gentlemen, I withdraw the statement.. I am sorry I made it.’ The court stated: ‘ The statement has been withdrawn by counsel. Of course, gentlemen, you will be governed by the evidencé and will not consider anything outside. The motion for mistrial is overruled:’ The court did not interpose and prevent this 'argument, and did not rebuke the same, and did not instruct the jury that it was improper, and did not,' either in the charge or otherwise, make any reference to the incident, other than as above quoted. Counsel making the argument is a man of high character and standing in the community and at the bar. The argument was addressed to a jury with whom he w;as well acquainted and whose confidence and respect he enjoyed. Movant insists that the court erred in the following particulars: (a) The statements made by counsel for plaintiff were and are of an inflammable character, calculated to, and doubtless did, engender in the minds of the jury a feeling of prejudice and resentment toward the defendant, Southern Kailway Company, were grossly improper, not germane to any issue in the case, wholly outside of the record, and the court should have interposed and prevented the same, upon objection being made thereto should have rebuked the same, and instructed the jury that it was improper, and cautioned them against being influenced thereby. (&) The language so used by counsel for plaintiff was of such an inflammable nature, and calculated to engender such a feeling of resentment and prejudice in.the minds of the jury against the defendant, and were so grossly improper, wholly outside of the record and foreign to any issue in the case, that what happened was wholly insufficient to eradicate the prejudicial effect from the minds of the jury, who, no doubt, by this language, had been inflamed to such an extent as to render them incapable of giving to the defendant a fair and impartial trial, and the court should have withdrawn the case from the jury and declared a mistrial.”

It is clearly apparent that the language complained of was highly improper and exceedingly prejudicial to the defendant. Under the evidence submitted it was a close question as to whether the plaintiff was entitled to recover, and the .withdrawal of the objectionable language by counsel and the statement of the judge in reference thereto were not “a sufficient correction of the injury done to the defendant, and consequently it was error to overrule the latter’s motion for a mistrial.” See, in this connection, Morris v. Maddox, 97 Ga. 575 (2, 3) (25 S. E. 487).

In the instant case the language used was so calculated to prejudice the jury against all railroad companies, including the defendant, that it is extremely doubtful if its injurious effects could have been cured by any rebuke of the court or by any instructions to the jury. A mistrial was the only remedy.

No other reversible error appears.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., not participating, on account of illness.


text:
    17353.
    CHAN v. JUDGE.
    The only assignment of error in the petition for certiorari being too general, the judge of the superior court did not err in refusing to sanction the certiorari. It is immaterial that the judge assigned a different reason for the refusal to sanction.
    Certiorari, 11 C. J. p. 151, n. 51; p. 194, n. 61; p. 221, n. 14 New.
    Decided October 5, 1926.
    Petition for certiorari; from Chatham superior court — Judge Meldrim. April 6, 1936.

      Odom & Tuten, for plaintiff in error. W. M. Farr, contra.
   Bloodworth, J.

In this ease exception is taken to the refusal to sanction a petition for certiorari which complained of a judgment and ruling of a judge of the municipal court of Savannah, dismissing an appeal to a jury in that court. The only attempted assignment of error in the petition for certiorari is as follows: “Petitioner avers that said court erred in sustaining said motion to dismiss, and also in dismissing, said appeal to a jury in said court, and in entering up judgment as aforesaid, all of which rulings and findings of said court petitioner assigns as error.” As was said in Papworth v. Fitzgerald, 111 Ga. 56 (36 S. E. 311), “It [the petition for certiorari] does not even charge that it [the judgment complained of] was contrary to law, or evidence, or in what' particular it is defective, or for what reason it should be set aside. Civil Code, § 4637 [Code of 1910, § 5183], declares that when a party applies to obtain a writ of certiorari by petition to the superior court, he shall plainly and distinctly set forth the errors complained of.” The foregoing assignment of error does not conform to this requirement of the statute. See also Harrell v. City of Quitman, 17 Ga. App. 299 (86 S. E. 662), and citations.

(a) The fact that the judge of the superior court refused to sanction the petition for certiorari for another reason is immaterial. The petition was fatally defective and should not have been sanctioned, and the judgment should be affirmed. Doe v. Roe, 20 Ga. 689 (3); Memmler v. State, 75 Ga. 576; Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1, 2 (90 S. E. 970), and cit.

Judgment affirmed.

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


author: Luke, J.

text:
    17439.
    Waldhour v. Kessler et al.

    Decided October 5, 1926.
    Certiorari; from Effingham superior court — Judge Strange. April 19, 1926.

      Travis & Travis, W. B. Stubbs, for plaintiff in error.

      Clarence T. Guyton, contra.
    Certiorari, 11 C. J. p. 222, n. 32.
   Luke, J.

In this case exception is taken to the order of the judge of the superior court overruling a certiorari from the ordinary’s court upon a judgment on an application to remove obstructions from a private way. The testimony was conflicting, and careful examination of the record and of all the assignment's of error discloses no error in overruling the certiorari.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eonour.


text:
    17447.
    ADAMS v. SCRIBNER.
    Under the allegations of the petition, the alleged slanderous statement of belief, and of reasons for the belief, as to the taking of graft by the defendant in connection with the purchase of an x-ray machine for the hospital of which she was superintendent and the defendant was secretary and treasurer and a director; which statement was alleged to have been made by him at a meeting of the board of directors, constituted a cause of action. It was not necessary to allege special damage. The statement was not an absolutely privileged communication; it was only conditionally privileged; and in order for such a communication to be so privileged as to be a bar to a suit for slander, it must appear that it was made in good faith, to protect the speaker’s private interest, and not with malicious intent.
    Libel and Slander, 36 C. J. p. 1180, n. 2, 4; p. 1182, n. 24; p. 1186, n. 19 New; p. 1219, n. 92, 93; p. 1241, n. 28.
    Decided October 5, 1926.
    Slander; from Chatham superior court — Judge Meldrim. April 28, 1926.

      George II. Richter, for plaintiff in error.

      Oliver & Oliver, John Z. Ryan, contra.
   Broyles, C. J.

In the instant case the plaintiff’s petition alleged: that she was a trained nurse by profession, and of high character, experience, and ability, and was so known in New York, Vermont, Tennessee, Georgia, and other States; that when the slanderous charges against her, hereafter set out, were made by the defendant she was superintendent of the Savannah Hospital in Savannah, Ga.; that the defendant was secretary and treasurer and one of the managers of the hospital; that as such superintendent the plaintiff had been instrumental in having the hospital purchase a new Victor x-ray machine; that some time thereafter and on the night of February 5, 1925, the defendant, at a meeting of the board of directors of the Savannah Hospital, spoke of and concerning your petitioner the following false, defamatory, derogatory, and slanderous words: “I believe it to be true that she (meaning your petitioner) received graft from the x-ray people (meaning Victor X-Ray Machine Company), although I can not prove it, and I can make this charge because of the fact that a telegram came relative to the transaction (meaning the purchase from the X-Ray Machine Company) and I never got it, but I later got a copy of it from the Western Hnioñ Telegraph Company.”

1. These charges were calculated to injure the plaintiff in her profession of a trained nurse and in her position as superintendent of the Savannah Hospital.

2. Where slanderous charges are made in reference to another person’s trade, office, or profession which are calculated to injure him therein, damage is inferred. Civil Code (1910), § 4433. It follows that in such a case the person slandered need not allege special damage.

3. The alleged slanderous charges, as made were not absolutely-privileged communications, but were merely conditionally privileged communications, and in order for such communications to be so privileged as to be a bar to a suit for slander, it must appear that the words were spoken bona fide, to protect the speaker’s private interests, and not with malicious intent. Nicholson v. Dillard, 137 Ga. 225 (4) (73 S. E. 382).

4. The alleged damages sued for were not too remote to be recovered.

5. Under the above-stated rulings the petition set out a cause of action, and the court properly overruled the general demurrer. No error appears in the ruling upon the special demurrer..

Judgment affirmed.

Dulce and Bloodworth, JJ., concur.


text:
    17449.
    LEWIS et al. v. STANDARD COMPANY INCORPORATED.
    This court will not determine as to the sufficiency of pleas the contents of which do not appear in the record, either literally or in substance.
    A correct judgment overruling a certiorari will not be reversed because of error in the reason given for the judgment.
    Certiorari, 11 C. J. p. 201, n. 33 New; p. 221, n. 14 New.
    Decided October 5, 1926.
    Certiorari; from Fulton superior court — Judge Humphries. April 7, 1926.

      G. H. Cornwell, for plaintiffs in error. Horace Bussell, contra.
   Luke, J.

The Standard Company recovered a judgment against the plaintiffs in error in the municipal court of the City of Atlanta. Upon the trial the pleas to the jurisdiction of the court were dismissed upon the ground that the sheriff’s return of service had not been traversed by the defendants. The defendants obtained a writ of certiorari, and upon the hearing thereof the certiorari was overruled. The only question in the case is whether the trial magistrate erred in dismissing the pleas to the jurisdiction, and this question can not be determined by this court, since the petition for certiorari does not contain such pleas, either literally or in substance, nor are they attached thereto as exhibits. The pleas may have been defective in themselves. See, in this connection, Barnard v. Glisson, 25 Ga. App. 357 (103 S. E. 189).

(a) It is immaterial that the judge of the superior court may have given an erroneous reason for the overruling of the certiorari. If his judgment was correct for any other reason it should not be reversed. Memmler v. State, 75 Ga. 576 (1-a), 578, 579.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    17452.
    RILEY et al. v. THE STATE.
    1. It was not error to admit in evidence the knife taken from the pocket of the defendant Riley, there being evidence from which the jury could conclude that he participated in the cutting, that he confessed to so’ doing, and that the knife had blood on it.
    2. The conviction of Riley did not rest solely upon circumstantial evidence, and the court did not err in failing to give in charge section 1010 of the Penal Code (1910). Nobles v. State, 127 Ga. 213 (5) (56 S. E. 125).

      (a) Being based on the hypothesis that the evidence against Riley was entirely circumstantial, grounds 14 and 15 of the motion for a new trial are without merit.
    3. Exception 16 was: “Because all the testimony of officer Leathers, witness for the State, except that portion stating that he is the arresting officer, was incompetent and inadmissible.” It not appearing that any objection was made in the trial court to the introduction of this evidence (Andrews v. State, 118 Ga. 1, 43 S. E. 852), and the evidence constituting about two and a half pages of typewritten matter, much of which was admissible (Buffington v. State, 33 Ga. App. 162 (4), 125S. E. 725), this exception is clearly without merit.
    4. The evidence supports the verdict.
    Criminal Law, 16 C. J. p. 618, n. 34; p. 619, n. 36; p. 1009, n. 6; 17 C. J. p. 56, n. 16.
    Homicide, 30 C. J. p. 318, n. 96.
    Decided October 5, 1926.
    Rehearing denied November 9, 1926.
    Assault with intent to murder; from Eulton superior court-judge Howard. May 1, 1926.

      T. C. Denmark, E. R. Hill, L. S. Mariizer, for plaintiffs in error.

      John A. Boykin, solicitor-general, J. W. LeGraw, contra.
   Luke, J.

Sidney Tennant, alias Tenner, and Henry Riley were jointly accused of assault with intent to murder, in that they did “cut and wound one S. C. Gregory” with a knife. They were jointly tried and were convicted of the offense charged. With a few exceptions, which will be referred to later, the grounds of motion for a new trial were merely elaborations of the general grounds, the real question for determination being whether the evidence was sufficient to support the verdict.

The alleged- assault occurred at about eleven o’clock on the night of January 18, 1926, at a point on 'Victoria' street about thirty feet from' Elliott street, in the city of Atlanta. Gregory testified substantially as follows: In company with two unknown white men he was seeking whiskjc While he was talking to a negro man two other negro men, or boys, came up. One of them came up to the witness with something in his hand, and said, “Give us what you have got.” The negro did not talk distinctly, but witness understood him to say that. Witness knocked the man down with his fist and struck the other man. They hit him. He -had a lick on the right side of his head, and remembered nothing after that. $5 was taken from his pocket. The two white men left, and were not seen again. Witness was cut and stabbed in his leg. He remained in the hospital ten days. He testified further, “I have not the same use of my legs now that I had before. I have good use of my knee, but no use of my ankle and foot at all.” Witness had a drink of whisky about an hour before the difficulty, but was not drunk.

Eddie Irby testified, that while he and Henry Riley were standing in front of his door, three white men came up and called across the street 'to know if he and Riley could get them some whisky. Gregory gave Riley some money, and Riley went off and brought' back two pints of whisky. Gregory took one pint and gave a half pint to each of the two white men. When Riley returned Tennant came up behind him. Tennant asked witness what was the trouble. Gregory asked Tennant who he was talking to, and Tennant replied that he was not talking to him. When Tennant got nearer, Gregory slapped him backward in the street. Tennant did nothing to cause the blow. Tennant got up and Gregory hit him again, “and they both went together and fell in the street, and Tennant began cutting hixn with his knife.” Eiley was looking on while witness was trying to pull Tennant'off Gregory. The other white men left when the fight started. When witness carried Tennant home Gregory was in the street, trying to get up. On cross-examination Irby testified, that when Gregory knocked Tennant down and Tennant arose and asked why he had been hit, Gregory told him he would kill him, and struck him again; that they fell down, and Gregory was on top, beating Tennant with his first; that Tennant then got on top; that Eiley took no part in the affair except to assist witness in pulling Tennant off of Gregory; and that Tennant pulled his knife while Gregory was on top of him beating him.

Eeferring to a time three or four days after the difficulty, and to Tennant, Eiley, and Irby, T. H. Leathers, a city policeman testified: “We went to the houses and got them out of bed . . , and all three admitted being there when the fight took place. Tennant told us that he took part in it, and that the fellow knocked him down in the street, and that he hit him back and then he ran. He said Eiley was the man that cut him. He said he left Eiley there. Eiley would not have very much to say about it; he kind of played mute. I asked Tennant where the knife was. He claimed he did not know which one did the cutting, but he knew there was a man cut. Eiley did not say whether he did the cutting or not, right at the time. Later on he admitted to us in the courtroom that they all three did the cutting. Eiley did not say whether it was his knife or the other fellow’s that did the cutting. We got the knife off of Eiley, and Tennant’s knife, he left it at the house when we arrested him. It was almost the same kind of knife as this. I examined the knife at that timé. . . It looked to be dried blood on it. I took this knife away from Eiley at that time. . .We found a knife on each one of the boys. The other one is at the police station. . . They freely and voluntarily told me all about it. Mr. Waters [another policeman] took this knife from Eiley’s pocket. He did not deny his ownership of the knife. We fo.und a knife on Tennant and left it at his home.”

The evidence supports the verdict, and the court did not erf in overruling the motion for a new trial. The headnotes require no elaboration.

Judgment, affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    17453.
    TENCH et al. v. DOWNEY HOSPITAL INCORPORATED.
    Tlie general rule, that a claim for damages arising from a tort can not be set off against one based on a contract, was applicable to the cross-action in this case, by which .the defendant to an action upon a promissory note, given for services rendered by the plaintiff, a hospital corporation, to liis wife as a patient in its hospital, sought to set up damages because of alleged improper treatment of her by the president of the plaintiff corporation and another physician when she was a patient in the hospital.
    A cross-action based on a tort can not be so amended as to base it on a contract.
    For recoupment to lie, the plaintiff should be liable to the defendant under the contract sued upon.
    Construing the cross-action most strongly against the pleader, it shows no cause of action against the plaintiff corporation, but if a cause of action exists because of malpractice or negligence in the treatment of the defendant’s wife by individuals named, the cause of action is against them.
    The proffered amendment, by which the defendant sought to amplify certain paragraphs of his cross-action and to plead a total failure of consideration, was properly disallowed; and the court did not err in dismissing the cross-action and directing a verdict against the defendant.
    Pleading, 31 Oye. p. 78, n. 95; p. 431, n. 97.
    Recoupment, Set-Off and Counterclaim, 34 Oye. p. 676, n. 31; 'p. 678, n. 38; p. 707, n. 84.
    Decided October 5, 1926.
    Complaint; from Habersham superior court — Judge J. B. Jones. March'3, 1926.

      J. C. & H. E. Edwards, for plaintiffs in error..

      Bryan & Middlebrooks, I. H. Button, A. C. Wheeler, contra.
   Luke, J.

Downey Hospital Incorporated, as transferee, brought suit on a note for the principal sum of $100, interest and attorney’s fees, against Richard McConnell as maker and payee, and S. J. Tench as indorser and transferor; the note having been given by McConnell to Tench, and transferred by Tench to the hospital in part payment for services rendered to Tench’s wife. In his answer McConnell admitted that he executed the note, alleged that he was a mere stakeholder, and prayed that “court direct him how, when, and to whom' said sums should be paid.” Tench also admitted the execution and delivery of the note and admitted that “he executed and delivered his indorsement on said note,” but, “for further and special plea and answer by recoupment, says that he is not indebted to the plaintiff in any sum whatever, but on the contrary the plaintiff;, Downey Hospital Incorporated, under this defendant’s contract of indorsement on said note sued upon, is in good conscience liable to this defendant in damages in the sum of ten thousand dollars” by reason of improper treatment of and resultant injury to said defendant’s wife by Dr. J. H. Downey, president of plaintifE’s corporation, and Dr. J. K. Burns Jr., while defendant’s wife was a patient in said hospital, the specific acts of negligence and injury being set out in the answer. Plaintiff made an oral motion to strike the entire cross-action filed by Tench, on the ground that said cross-action was an undertaking to set off a tort against a contract. Before the motion was passed upon by the court “counsel for Tench offered an amendment to his cross-action, amplifying certain paragraphs of said cross-action and further pleading a total failure of consideration.” The court refused to allow the proffered amendment of Tench, and thereafter sustained the motion of counsel for plaintiff, Downey Hospital Incorporated, to dismiss said cross-action; and “thereupon, on motion of counsel for plaintiff, Downey Hospital Incorporated, the court directed a verdict for the plaintiff, Downey Hospital Incorporated, against Bichard McConnell, maker and payee, and S. J. Tench as indorser, for the principal amount of said note, interest, attorney’s fees, and costs of suit.” To said refusal to allow the amendment, dismissal of the cross-action, and direction of the verdict, Tench excepted.

The suit of the Downey Hospital Incorporated was an action ex contractu, being a suit on a promissory note. The cross-action of defendant Tench, alleging grossly negligent conduct of the physicians .and consequent injury to his wife, was an action ex delicto. “A claim for damages arising from a tort can not be set off against one based on a contract,” there being no allegation of any “special circumstances, such as insolvency or nonresidence of the plaintiff against whom the set-off is desired to be established.” Standhardt v. Hardin, 145 Ga. 148 (88 S. E. 565), and cases cited. Tench, having filed his cross-action based on alleged torts, can not after-wards base it on a contract. Stokes v. Wright, 20 Ga. App. 325 (93 S. E. 27); Houze v. Blackwell, 20 Ga. App. 438 (93 S. E. 16). Even assuming that the cross-action of Tench was one ex contractu, based on the contract which he had with the hospital for services to his wife, that contract was separate from the contract (the note) sued upon; and for a recoupment to lie, the plaintiff should be liable to the defendant under the same contract sued upon. Civil Code (1910), §§ 4351, 4353; Gem Knitting Mills v. Empire Printing & Box Co., 3 Ga. App. 709 (60 S. E. 365).

Furthermore, construing the cross-action most strongly against the pleader, it shows no cause of action against the Downey Hospital Incorporated, but the cause of action, if any exists and so far as shown by the cross-action is against the physicians whose alleged negligence- and malpractice resulted in the alleged serious injury to the wife of the defendant Tench. See Jeter v. Davis-Fischer Sanitarium, 28 Ga. App. 708 (113 S. E. 29); Black v. Fischer, 30 Ga. App. 109 (117 S. E. 103).

Under the foregoing rulings the trial judge properly refused to allow the amendment to the cross-action, dismissed the cross-action, and directed a verdict- for the plaintiff.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    17456.
    Harris v. Rood.
    Decided October 5, 1926.
    Rehearing denied November 9, 1926.
    Complaint; from Peach .superior court — Judge Mathews. April 24, 1926.
    Application for certiorari was denied by the Supreme Court.
    Appeal and Error, 4 O. J. p. 223, n. 35; p. 851, n. 53; p. 905, n. 41; p. 937, n. 6.
   Broyles, C. J.

1. Under the principle of the ruling in Bank of Ringgold v. Poarch, 30 Ga. App. 102 (117 S. E. 114), the signature of counsel for the plaintiff in error, appearing upon the next page after the end of the bill of exceptions, and dated the same day that the bill of exceptions was certified by the judge, amounted to a signing of the bill of exceptions by such counsel. Therefore the motion of the defendant in error to dismiss the bill of exceptions is denied.

2. The court did not err in overruling the demurrer to the original petition, or in overruling the demurrer to the petition as amended.

3. Upon the trial the plaintiff proved her case as laid and no evidence was introduced by the defendant. It follows that the verdict in favor of the plaintiff was authorized; and as no error of law is complained of, except the overruling of the demurrers to the original and the amended petition, the judgment refusing the grant of a new trial must be and is

Affirmed.

Luke, J., concurs; Bloodworth, J., not participating, on account of illness.

A written contract between W. H. Harris and C. M. Bood was as follows: “The said W. H. Harris has this day [July 30, 1920] sold to the said C. M. Bood his entire crop of pecan nuts for the year 1920, now growing on what is known as his Collier Pecan Grove, located about one mile west of Fort Yalley, Ga., said grove consisting of about thirty-one acres. Said Harris sells all of his pecan nuts in said grove of the following varieties [named] at 40 cents .per pound, the following varieties [named] at 30 cents per pound- All of said nuts are sold f. o. b. cars, Fort Yalley, Ga., to-be sacked in new double sacks of even weights, and are sold by net weight of nuts. All nuts are to- be properly cured and free from trash, runts, and faulty nuts. It is understood and agreed that said W. H. Harris reserves all the nuts grown on this place known as the Alley and enough nuts of the Delmas variety to make the total reserve five hundred pounds. Payment for said nuts is to be made as follows: . . $2,000 cash, the receipt of which is hereby acknowledged, and as nuts are shipped from time to time payment of one half of the amount that said shipment brings, in accordance with the above scheduled prices, is to be made to said Harris when the same are delivered f. o. b. cars, Fort Yalley, Ga.; the other one half of said proceeds is to be applied to the payment of $2,000 cash this day paid, and 'when said sum of $2,000 has been consumed in this way, payment is. to be made in full of nuts when delivered f. o. b. cars, Fort Yalley, Ga., in accordance with the above-enumerated terms.”

In 1923 Mrs. Bessie H. Bood, widow and sole heir at law of C. M. Bood, sued W. H. Harris for $1,328.70 and interest from July 30, 1920, and by her petition as amended alleged, that C. M. Bood, on July 30, 1920, advanced to the defendant $2,000 in cash towards the purchase of a portion of the defendant’s pecan crop “from the year 1920” which was grown on the defendant’^ farm known as the Collier Pecan Grove; that this advance was made under the contract set out above (a copy of which was attached to the petition); that under this contract the defendant delivered to C. M. Bood at the contract price pecan nuts of the value of $1,-165.40, on which C. M. Bood paid him the additional sum of $494.10; the balance due on the nuts delivered, of $671.30, being deducted from the $2,000 cash advanced, leaving a balance in the hands of the defendant of $1,328.70; that the defendant agreed for the deduction from the $2,000 to be made, and promised to pay the said balance due, recognizing both before and after the execution of the said contract that he was obligated to reimburse C. M. Rood for the amount of cash received by him for which nuts were not delivered at the prices named in the said contract'; that the defendant failed and refused to deliver any more nuts than the amount hereinbefore stated, although C. M. Rood was ready and willing to take the same, and failed and refused to pay to C. M. Rood or to the plaintiff the balance in cash advanced to the defendant, for which no nuts were delivered as aforesaid, although the defendant agreed to pay the said amount, and the defendant in good conscience was obligated to pay to the plaintiff the amount of cash as aforesaid received by him for which no nuts had been delivered. A copy of an account, showing a balance due as alleged, was attached to the petition.

The defendant demurred to the original petition and to the petition as amended, on the following grounds: (1) No breach of the contract is alleged. (2) The sole obligation of the defendant, under the contract, was to deliver a certain crop of pecans, less a named reservation, and it is not alleged, that this obligation was not complied with. (3) Under the contract there is no express or implied liability on the defendant’s part to pay money to the other party, but only to deliver the named crop of pecans, the contract showing that the money paid as the consideration of the contract was paid as a bonus to effect the bonus, and to be accounted for only in the event and in proportion as the crop of pecans then growing on the trees might yield at shipping time, and the parties to the contract' jointly, to the extent named, sharing the risks incident to the maturing of the crop. ' (4) No cause of action is set out. To the amendment.the defendant demurred further as follows: The amendment states that the defendant “failed and refused to deliver any more nuts than the amount hereinbefore stated,” but does not state that any portion of the nuts called for by the contract remained undelivered, and does not allege any failure on the defendant’s part to comply with every obligation -imposed by the contract. The written contract can not be varied by parol, and no consideration is alleged for any subsequent variation in the contract. Cited by counsel in support of the demurrers: 135 Ga. 387; 33 Ga. App. 742; 10 Ga. 560 (1), 561, 563; 93 Ga. 773, 775.

Houser & Mathews, for plaintiff in error.

Brown & Brown, contra.


text:
    17459.
    STEPHENS v. BUGG, receiver.
    The action being for damages on account of the alleged negligent construction and maintenance of a bridge of the defendant, from 'which, it was alleged, the plaintiff’s automobile-truck fell when, in an attempt to pass another automobile, it struck the guard-rail of the bridge and the rail gave way, the petition alleging that the bridge was too narrow and that the guard-rail was built of partly rotten and flimsy lumber, and the evidence failing to’ support these allegations as to the condition of the bridge and the guard-rail, and showing that the proximate cause of the damage was the driving of the other automobile to the middle of the bridge in order to pa,ss a wagon, thus forcing the plaintiff’s truck to run against the guard-rail, the court did not err in granting a non-suit.
    The court did not err in excluding testimony to the effect that the guardrail would have had more resistive power and would have held the truck on the bridge if the rail liad been constructed in a different manner specified.
    Railroads, 33 Cyc.. p. 1043, n. 29 New.
    Decided October 5, 1926.
    Action for damages; from city court of Greenville — Judge Revill. April 29, 1926.

      N. F. Culpepper, R. A. McGraw, for plaintiff.

      Brandon & Hynds, Lovejoy & Mayer, W. R. Jones, for defendant.
   Luke, J.

James Stephens sued B. L. Bugg, receiver of the Atlanta, Birmingham & Atlantic Railway Company, alleging in substance that the petitioner’s automobile truck, while attempting to pass another automobile on a bridge built and maintained by that company, hit against the guard-rail of the bridge, and the rail gave way and the truck was precipitated a distance of 25 or 30 feet, resulting in injury to his son and demolishing the truck; that “the width of said bridge and making same more narrow was an act of negligence on the part of the defendant;” that “said defendant negligently erected and maintained on the side of said bridge guard-railings and supports built of worm-eaten, partly rotten, flimsy lumber;” and that “the injuries to him. and to his said truck and to his said son was caused by the negligence of the said defendant in building and maintaining and permitting the said bridge and guards to remain in the condition herein alleged.”

On the trial'there was ample evidence-to show that.two cars could pass each other on the said bridge without striking each other and without striking the guard-rails of the bridge, and there was no evidence that this could not be done. This being true, so far as the construction of the bridge was concerned, there was no necessity of striking the guard-rails of the bridge -in passing the automobile. There was no evidence to show that the guard-rails or any portion of the bridge were built of “worm-eaten, partly rotten, flimsy lumber,” but, on the contrary, the evidence showed that “the timbers at that time were new timbers. The bridge had not been very long overhauled.” The evidence further showed, that the plaintiff’s truck was on the bridge; that coming toward and facing this truck were a wagon and an automobile, the automobile being behind the wagon; that the automobile, in trying to pass the wagon, ran to the middle of the bridge, and that the driver of the plaintiff’s truck, in an effort to avoid being hit by the approaching automobile, turned quickly to the. right and ran against the guard-rail of the bridge which gave way. Unquestionably, according to the evidence, the proximate cause of the injury was the automobile trying to pass the wagon on the bridge, and, in so doing, coming to the middle of the bridge and forcing the driver of the plaintiff’s truck to run against the guard-rail of the bridge. In fact the plaintiff’s son, who was in the plaintiff’s truck at the time, testified: “If that car had not been passing around the wagon, I guess we would have had plenty of room to have gone ahead and passed over the bridge.” The plaintiff not only failed to prove the material allegations of his 'petition as to the bridge being too narrow and the guard-rails being of “worm-eaten, partly rotten lumber,” but also failed to prove that the construction of the bridge was in any respect the proximate cause of the injury.

The court did not err in ruling out certain evidence the rejection of which is complained of, and properly granted a nonsuit.

Judgment affirmed.

Broyles, C. J., and Bloodioorih, J., concur.


text:
    17460.
    WINGFIELD v. BENNETT, superintendent, etc.
    Whether sales made under an order of the superior court should bo confirmed is a matter within the sound legal discretion of the court.
    Such sales are never consummated until confirmed.
    Judicial Sales, 35 C. J. p. 43, n. 22; p. 44, n. 30; p. 47, n.83; p. 49, n. 25.
    Decided October 5, 1926.
    Confirmation of sale; from Putnam superior court — Judge Park. May 15, 1926.

      W. B. Wingfield, pro se.

      Allen & Pottle, Luther Roberts, contra.
   Bloodworth, J.

Under and by virtue of the banking laws of this State (Ga. L. 1919, p. 135) T. R. Bennett, as superintendent of banks, in September, 1921, took possession of all the assets and business of the Bank of Eatonton. After having been in possession of the bank’s assets from that time, and, through his own efforts and those of his attorneys, having made collection of what he could from the assets up to November 9, 1925, he made application to Hon. James B. Park, judge of the superior courts of the Ocmulgee circuit, and obtained an order to sell the remaining assets, the order providing that the sale should be “subject to confirmation of this court.” Pursuant to that order the assets were advertised to be sold for cash before the courthouse door at Eaton-ton on the first Tuesday in December, 1925, when they were knocked off to W. B. Wingfield for $100, he being the highest and best biddér. Thereafter the said Bennett, superintendent of banks, filed a petition in the superior court of Putnam county, in which it was alleged that “the amount of the bid of $100 made by W. B. Wingfield was grossly inadequate, and said assets are worth much more than the amount of said bid, and that since the date of said sale your petitioner has been offered the sum of $1,400 for said assets,” and praying that the sale for $100 be not confirmed. W. B. Wingfield answered the petition, and, upon an agreed statement of facts, the issue was submitted to and passed upon by Judge Park, who, on May 15, 1926, passed an order refusing to confirm the sale for $100. To this order of the court Mr. Wingfield excepted.

The judge did not abuse his discretion in refusing to confirm the sale. Moreover, as shown above, the order authorizing the sale provided that it should be subject to confirmation by the court. Under this order the sale would not be consummated until confirmed. Civil Code (1910), § 5439. See Hall v. Taylor, 133 Ga. 606 (66 S. E. 478). The foregoing ruling is correct even though the advertisement of the sale did not disclose that the order for the sale provided that it should be subject to confirmation, and even though the purchaser did not know of this provision of the order.

Judgment affirmed.

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


text:
    17461.
    Oconee County Bank v. Osborn et al.

    Decided October 5, 1926.
    Complaint; from city court of Americus — Judge Harper. May 15, 1936.

      B. L. Maynard, for plaintiff. J. E. D. Shipp, for defendants.
    Appeal and Error, 3 G. J. p. 850, n. 24; p. 981, n. 74; 4 G. J. p. 905, n. 41.
    New Trial, 29 Oye. p. 901, n. 59; p..911, n. 94; p. 918, n. 5.
    Trial, 38 Cyc. p. 1693, n. 55; p. 1711, n. 19; p. 1779, n. 75.
   Broyles, C. J.

1. Ground 1 of the amendment to the motion for a new trial, complaining of the failure of the court to charge certain contentions of the plaintiff, is too defective to be considered by this court, as it does not appear from the ground that such contentions were supported by any evidence.

2. No material error appears in any of the excerpts from the charge, complained of, when they are considered in connection with the entire charge.

3. In view of the facts of the case and the charge given, the failure of the court to charge the principle of law set forth in ground 7 of the motion for a new trial was not error, especially since there was no timely and appropriate written request so to charge.

4. The alleged newly discovered evidence is largely cumulative and . impeaching, and is not of such a character as would likely cause a different verdict upon another hearing of the case.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17462.
    ANDERSON v. SPEER et al.

    Construing most strongly against tlie plaintiff in this case the petition by which she sought to recover for injuries from a fall down basement steps in front of a building and near a show-window at which she had been looking, no cause of action against the owner of the building was set out.
    Negligence, 29 Cyc. p. 467, n. 46; p. 574, n. 44.
    Pleading, 31 Cyc. p. 78, n. 95.
    Decided October 5, 1926.
    Action for damages; from Eulton superior court — Judge Humphries. April 26, 1926.

      L. O. Simmons, Branch & Howard, for plaintiff.

      Jones, Evins, Moore & Powers, F. W. Flint, for defendants.
   Luke, J.

Mrs. William Anderson sued Beatty Brothers (a firm composed of C. T. and S. J. Beatty) and Mrs. Katie Silvey Speer for damages for alleged personal injuries. The trial court sustained both the special and the general demurrers of Mrs. Speer to the petition as amended and dismissed it. To the court’s order sustaining the general demurrer and dismissing the petition the-plaintiff excepted.

The case presented by the petition as amended is substantially as follows: Mrs. Speer owns the Silvey Building, which is in the city of Atlanta and abuts on the north side of Decatur street. Beatty Brothers occupy and operate a pool-room in the basement of said building at 6-% Decatur street, the floor of said pool-room being six or eight feet below the level of the street. Said poolroom is entered by way of stairsteps leading to the floor level of said basement, the top step being not more than five or six inches from the outer line of the sidewalk. East of and adjacent to that portion of said building where said steps are located, and practically on a level with Decatur street, is a pawnshop, the door of which is set back some five or six feet from the sidewalk in a kind of alcove; and on each side of the entrance to this shop are show-windows surrounded by plate-glass, where jewelry, musical instruments, and the like are displayed. “Just above the steps hereinabove mentioned, . . and in the space where said steps lead down into the basement, there was another alcove of the same general appearance and practically the same size as that above mentioned, leading to the doorway of said pawnshop, and one of the show-windows of said pawnshop was adjacent to this portion of the building, and was so arranged that articles of merchandise could be and were displayed on the side next to said stairsteps.” On the night of February 1,1925, between 6 :30 and 7 o’clock, p. m., the same being Sunday night, the petitioner, her husband, and another gentleman, while passing along said street at this place had their attention attracted by some of the articles displayed in said show-window, and stopped to look at them. At that time there was no light in this place, and petitioner could not see, and did not know, that said stairsteps were located therein practically at the edge of said sidewalk. Said show-window was lighted by electric lights, but there was a wooden floor therein elevated some two or three feet above the sidewalk level, and the light in the show-window did not light said stairway so that a person casually observing the same, could distinguish the steps, or see that they were located at said place. (The petitioner’s alleged injuries were here set out.) The defendants were negligent in that said steps were located as described, and practically at the edge of the sidewalk, thus constituting a dangerous place where persons passing were likely to be injured. The substance of the matter added to the petition by amendment is as follows: While petitioner was looking at the articles in said show-window, and was standing on the sidewalk at the corner of said show-window, at the point where the said alcove in which said steps were located adjoined the sidewalk, she shifted or changed her position slightly in order to get a better view of some of the articles in said window, and in doing so she inadvertently moved one of her feet a few inches and inadvertently stepped over the edge of the sidewalk into the opening occupied by said steps, and this caused her to lose her balance and to be precipitated down said steps, and to be very seriously and severely injured. The space between the sidewalk and the point where said steps began to descend into said basement was only a few inches wide, was on a level with the sidewalk, and was paved so as to have the same general appearance as the sidewalk and to look like it. There was nothing to warn any one of the existence of said steps at said place; and when the same was dark, as on the occasion in question, a person unacquainted with the situation, casually passing along said sidewalk, or standing at said place, would not, in the exercise of ordinary care, observe the .fact that said steps descended from the edge of the sidewalk. Petitioner was not familiar with said place, and did not know of the existence of said steps, and she conld not by the exercise of ordinary care have discovered or known of the existence thereof. There was nothing to indicate the dividing line between the sidewalk and the property of defendant, Mrs. Speer, and petitioner thought she was standing on the public sidewalk, and there was nothing to indicate to her or put her on notice of the existence of said dangerous situation at said place. Said Mrs. _Speer knew, or in the exercise of ordinary care could have known, of the dangerous condition existing at said place; and she knew that said show-window existed and was intended to be used as it was used on the occasion in question for the purpose of displaying merchandise in order to attract the attention of persons passing by; and in the exercise of ordinary care she should have known that a person using the sidewalk at said place and especially one who might be attracted by the display in said window, would probably or likely inadvertently step over the level portion of said space and into the opening occupied by said steps; and it was therefore negligence on her part to allow said dangerous condition to exist, especially without anything to warn any one of said dangerous situation as described. Said Beatty Brothers were negligent in that they knew of the existence of said dangerous situation, and were occupying that part of said premises, and failed to keep the same lighted, or to do anything to put any one on notice of the dangerous situation existing at said place and in that part of said premises occupied by them as tenants of said Mrs. Speer.

The petition, construed. most strongly against the plaintiff, shows: that while the stairway down which the plaintiff fell was not lighted, the show-window near it was lighted, and the street lights presumably were burning (it being alleged that the building was located in the central portion of the city, that it was between 6 :30 and 7 o’clock, and there being no allegation that the streets were not lighted); that the plaintiff’s leaving the sidewalk resulted in her falling down the stairway and sustaining the alleged injuries; and that this deviation from the sidewalk was voluntary and not accidental, she having strayed from the sidewalk for the purpose of better viewing the attractive show-window. This being true, no cause of action was set out against the owner of the building, and the court properly sustained the demurrer and dismissed the petition as to the owner. Hutson v. King, 95 Ga. 271 (22 S. E. 615); Manos v. Myers-Miller Furniture Co., 32 Ga. App. 644 (124 S. E. 357).

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    17464.
    TURNER TERMINAL COMPANY v. ASHCRAFT-WILKINSON COMPANY.
    Where the finding of the jury on a question of negligence is supported by any evidence and is approved by the trial judge, and by the judge of the superior court on certiorari, -this court is without authority to interfere with it.
    Appeal and Error, 4 C. J. p. 864, n. 34.
    Negligence, 29 Oye. p. 635, n. 69; p. 636, n. 72; p. 640, n. 13.
    Decided October 5, 1926.
    Certiorari; from Eulton superior court — Judge Humphries. April 10, 1926.

      J. C. Shelor, Dorsey, Shelton & Dorsey, for plaintiff.

      Bell & Ellis, for defendant.
   Broyles, C. J.

As stated in the brief of counsel for the plaintiff in error; “Under the agreed statement of facts the sole question involved in this controversy is as to whether or not plaintiff in error, the warehouseman, used ordinary diligence in the storing of the material delivered to it by the bailor, German Potash Syndicate, and in the-shipping of the carload of kainit or manure salts to the Jackson Fertilizer Company, the customer of defendant in error.” Under repeated rulings of the Supreme Court and of this court, questions of negligence, including the question whether the plaintiff or the defendant in a case has exercised ordinary care or diligence, are for the jury to determine, and where the finding of the jury on such issues is supported by any evidence, and that finding has been approved by the trial judge, and by the judge of the superior court on certiorari proceedings, this court is without authority to interfere. Under these rulings and the facts of the instant case, this court can not hold, as a matter of law, that the overruling of the certiorari was error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17467.
    SHIRLEY v. PORTER.
    The charge of the court was not subject to exceptions to the effect that because of its length and repetitions it was “calculated to confuse rather than enlighten the jury;” that the first instructions in the charge were likely to be the most prominent in the minds of the jury, and did predominate; or that in instructing as to how the jury could estimate the plaintiff’s decreased earning 'capacity, the amounts used as examples for calculations were so small as to incline the jury to believe that the judge “did not think that his earning capacity amounted to much; ” and for no other reason assigned was it error to refuse a new trial.
    New Trial, 29 Cye. p. 790, n. 8 New.
    Trial, 38 Cyc. p. 1653, n. 11 New; p. 1759, n. 34.
    Decided October 5, 1926.
    Rehearing denied November 9, 1926.
    Action for damages; from Eorsyth superior court — Judge High-smith presiding. April 24, 1926.
    G. B. Walker, H. B. Moss, for plaintiff.
   Luke, J.

Shirley sued Porter, alleging that Porter, in the negligent driving of an automobile, had injured and damaged him. The jury, upon conflicting evidence, as they were authorized to do, returned a verdict in favor of the defendant. This verdict has the approval of the trial judge. Shirley’s motion for a new trial was overruled.

(a) The first special ground of the motion for a new trial attacked the charge of the court upon the ground that it “was so long and so many repetitions that it was calculated to confuse rather than enlighten the jury; there are nine and one half pages of the charge, while all the evidence, questions and answers, only make twenty-one pages.” (6) The second special ground is “that the first instructions given a jury by the court are likely to be the most prominent in their minds, and [movant] insists that the first instructions or theory imparted by the judge did predominate.” (c) The third special ground is that the court charged the jury as follows: “So that you should take this case under the evidence as submitted,. under the principle of law as given you in charge, and determine whether or not he is or is not entitled to recover as a matter of law under the evidence and facts as you find them to be.” (d) The fourth special ground complains that the court, “in instructing the jury as to how they could estimate his decreased earning capacity, used small numbers, $100.00, $50.00, and as low as $25.00.” The movant insists “that these small numbers were calculated to influence the mind of 'the jury that movant’s earning capacity was very small at best; that the size of the amounts used as example for the jury to make their calculations by did incline the jury to believe that the presiding judge did not think that his earning capacity amounted to much.” (e) In the fifth and last special assignment of error the movant insists “that the whole charge was unsuited to the facts in the case and that for that reason a new trial should be granted.”

The plaintiff had a legal trial of his cause and for none of the reasons pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    17470.
    UNITED STATES FIDELITY & GUARANTY CO. et al. v. BOHANNAN.
    The code provisions requiring that in motions for a new trial and in certain other eases there shall be an approved brief of the evidence do not apply to cases arising under the workmen’s compensation act.
    The statement of the employee at his place of labor within a few minutes of his alleged injury, that he had met with an accident while engaged in his usual work, and that his leg or knee had been injured thereby, was a part of the res gestee and was admissible as tending to show the fact of the injury.
    The award of the industrial commission was authorized by the evidence.
    Evidence, 22 C. J. p. 463, n. 19.
    New Trial, 29 Gyc. p. 972, n. 15.
    Workmen’s Compensation Acts, C. J. p. 125, n. 71.
    Decided October 5, 1926.
    Rehearing denied November 9, 1926.
    Appeal; from Walker superior court — Judge Maddox. May 7, 1926.

      Bryan & Middlebooks, for plaintiff in error.

      Norman Shattuck, contra.
   Broyles, C. J.

1. Under the general scheme of the workmen’s compensation act (Ga. L. 1920, p. 167) and the special provisions of the act, it is apparent that the code provisions requiring that in motions for new trials and in certain other cases a brief of the evidence shall be made and shall be approved by the trial judge do not apply to compensation eases. See, in this connection, Meacham v. State, 7 Ga. App. 713 (1) (68 S. E. 52). The motion to dismiss the bill of exceptions or to affirm the judgment excepted to, upon the grounds that no brief of the evidence had been made, and that no approval of the presiding judge appears on the record of the evidence transmitted to this court, is denied.

2. The award of the industrial commission was authorized by the evidence, and the judge of the superior court did not err in affirming it.

(a) This case is distinguished by its facts from that of Bolton v. Columbia Casualty Co., 34 Ga. App. 658 (130 S. E. 535), relied on by counsel for the plaintiff in error. In the Bolton case the only evidence as to the employee having suffered any accident arising out of and in the course of his employment was the declarations made by the employee while on the way to his home after the day’s work was over, and this court held that such declarations were “merely narrative and descriptive of something which had fully taken place and become a thing of the past, and had no probative value in establishing the fact that he was injured, and the industrial commission properly held that such statements or declarations were hearsay and no part of the res gestse.” In the instant case, however, there was evidence that the employee, while still at his place of labor, and within a few minutes of his alleged injury, told a fellow employee that he had met with an accident while engaged in his usual work, and that his leg of knee had been injured thereby, and the industrial commission properly ruled that these statements of the employee were part of the res gestae and were admissible as tending to show the fact of the injury.

Judgment afirmad.

Luke and Bloodworth, JJ., concur.


text:
    17473.
    LANE v. THE STATE.
    The evidence in this case was circumstantial, and was not sufficient to authorize a conviction of possession or control of intoxicating liquor.
    Intoxicating Liquors, 33 O, J. p. 761, n. 53,
    Decided October 5, 1926.
    Possessing intoxicating liquor; from city court of Washington —Judge Sutton. May 7, 1926.

      Norman & Norman, H. E. Combs, for plaintiff in error.

      Charles H. Calhoun, solicitor, contra.
   Luke, J.

John Lane was convicted of the offense of having, controlling and possessing spirituous liquors. Sheriff G. M. Walton testified: that just as he and Mr. John F. Cofer turned into the road that leads out past Mr. A. A. Smith’s house they met a white man, who was "a stranger, coming from out in the pines, and stopped the car and began talking to him.' While so tailring witness saw the defendant coming up the old road that comes up almost parallel -with the public road. While witness was talking to the defendant, the stranger to whom he had been previously talking got away. Witness’s car was stopped just a few feet after he got into the road leading past Mr. Smith’s. The lights of his car wére burning when the defendant came up. Witness saw by moonlight, from where he met the defendant, a can in the road, and found some whisky, — thirteen and a half gallons. Some of it was on the side of the old road that the defendant came up, and some of it was under the brush in front of where the car stopped. The defendant had no whisky, and denied knowing anything about the whisky that was found. The defendant was going in the direction of Mr. Smith’s house when witness stopped him, and said he was going there. After his arrest the defendant told witness that he would find some more whisky under some bushes near where he was arrested. The whisky was found where the defendant said to look for it. . The defendant said he worked for Mr. Smith.

John F. Cofer, county policeman, testified: He and the sheriff drove out the road beyond Mineral Springs up to where the road turns out through the pines to go by Mr. Smith’s house. Just as they turned out of the public road into the other road that leads by Mr. Smith’s, they met a man-who was a stranger, coming out of the pines. He walked up to their car and began talking to them. After they got a few feet further in the road they saw the defendant coming up the old road towards their car. “This is an old road that runs kind of parallel with the public road.” The lights on the car were burning. When the defendant reached the car the sheriff arrested him, and told witness to catch the stranger. The latter was gone, and was never seen again. After the de-. fendant’s arrest witness found two bottles of whisky on each side of the road, perhaps about ten feet from the road. The defendant was never seen outside this road. They found one gallon of whisky in the old road and four gallons beside this road under a bush. “About twenty steps from the road the defendant came up we found eight gallons of whisky.” The defendant worked for Mr. Smith, said he was going to Mr. Smith’s house, and when arrested he was in about two, or three hundred yards of said house and going in that direction. The sheriff took the defendant to jail and left witness there. After the sheriff had left, witness saw two or more men get up from near where the whisky was found and run away, escaping. The defendant was not seen with any whisky, denied any knowledge of it, and said he had only started out to see Mr. Smith. Defendant stated that he had been working for Mr. Smith for twenty-six years, that he often went to his house at night to see what he wanted him to do next day, and that on the occasion in question he was going to Mr. Smith’s to get some things he had left there. Defendant averred his innocence, and said he knew nothing about the whisky that the officers went back and found.

The evidence was not sufficient to authorize the conviction. Penal Code (1910), § 1010; Allen v. State, 25 Ga. App. 331 (103 S. E. 101); Mathis v. State, 28 Ga. App. 65 (110 S. E. 342).

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    17517.
    SMITH v. THE STATE.
    Contempt of court was sufficiently alleged in the petition and shown by the evidence, from which it appeared that the defendant went .to a person upon whom the court had imposed a probation sentence for a violation of the prohibition law, and endeavored to induce him to violate the terms of probation and drink whisky, saying to him, “Damn the court, take a drink.”
    Contempt, 13 C. J. p. 9, n. 66; p. 33, n. 77; p. 49, n. 60, 63; p. 54, n. 42; p. 65, n. 85; p. 77, n. 93.
    Decided October 5, 1926.
    Contempt; from city court of Swainsboro — Judge Herrington. May 24, 1926.

      Guy Alford, Humphrey & Edenfield, for plaintiff in error.
   Luke, J.

The defendant Floyd Smith was adjudged in contempt of court, and sentenced to serve two days in jail and pay the costs, “in that he attempted to interfere and did interfere with the sentence and order of the court imposing a sentence of 12 months in the chain-gang against one A. M. Hardee, to be served under probation outside the coniines of said chain-gang, causing and attempting to cause said A. M. Hardee to violate the terms of said order and sentence of the court.” The petition filed by the solicitor alleged that the defendant, Floyd Smith, “endeavored to induce the said Hardee to violate his parol or probation sentence and drink some of the whisky which he, the said Floyd Smith, had;” that “the said Floyd Smith expressed himself by the use of violent and obscene language concerning the probation sentence, and towards and of the court,” and “that the conduct of the said Floyd Smith was contemptuous of the court’s order and of the court.”

The evidence showed that A. M. Hardee entered a plea at the February term of the court, 1926, for selling liquor, and was given a fine and twelve months sentence on the chain-gang, the sentence to be served outside the confines of the chain-gang, under a probation officer; that during the latter part of March, 1926, the defendant Floyd Smith came to Hardee’s home and had something in a bottle, that Hardee took to be whisky; that Floyd Smith, who seemed to be intoxicated, asked Hardee to take a drink; that Hardee told the defendant Smith that he (Hardee) could not take a drink, because he was under probation; that after being informed that Hardee was under probation the defendant Smith said: “Damn the court, take a drink.” The defendant filed a general demurrer to the petition, and the demurrer was overruled. To the overruling of his general demurrer and to the rendering of the judgment against him the defendant excepted.

The court properly overruled the general demurrer to the petition; and the judgment rendered upon the trial of the case was amply authorized by the evidence. Plaintiff in error in his brief says: “If such a ruling [as the one rendered by the trial judge] is correct, our law affords more protection to criminals under sentence than it does to mere children.” While persons serving a sentence under probation should be protected in their efforts to fulfill the terms of their parol, the primary object of the proceeding under consideration is not the protection of the paroled person, but the upholding of the majesty of the law, respect for the courts and -for the orders of courts, and consequently the protection of society. Section 4644 of the Civil Code (1910) provides that “Every court has power to compel obedience to 'its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding therein;” and section 04643 of the Civil Code provides that the several courts of this State have power to punish for contempt of court, “the disobedience or resistance by any . . person or persons to any lawful writ, process, order, rule, decree, or command of the said courts.” There was ample evidence to show that the defendant attempted to resist a specific order of the court, and also to “obstruct the administration of justice.” Furthermore, he used disrespectful and contemptuous language concerning and of the court. Respect for duly constituted and properly exercised authority is essential to the welfare of a people. Power to enforce its orders and to punish for an unlawful and contemptuous interference therewith is inherent in the organization of a court, and necessary to a proper exercise of its functions. See Watson v. Dampier, 148 Ga. 588 (1) (97 S. E. 519); Bradley v. State, 111 Ga. 170 (36 S. E. 630, 50 L. R. A. 691, 78 Am. St. Rep. 157). There are numerous authorities to the effect that the discretion of courts in punishing for contempt will not be controlled unless grossly abused. There was no such abuse in the instant case.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


author: Jenkins, P. J.

text:
    17231.
    BUGG, receiver, v. HARPER.
    The excess in the amount of the original verdict for damages in this case did not necessarily indicate that it was induced by bias or prejudice; and it appearing that the plaintiff voluntarily wrote off enough of the amount to bring it within the measure of damages proved, the court did not err in- refusing to grant a new trial because of the excessive verdict.
    New Trial, 29 Cyc. p. 1022, n. 30.
    Decided October 5, 1926.
    Damages; from city court of Atlanta — Judge'Reid. January 30, 1926.

      Colquitt, Conyers & Smith, for plaintiff in error.

      T. J. Lewis, T. L. Slappey, contra.
   Jenkins, P. J.

“The mere voluntary writing off of a part of the verdict by the plaintiff is not in itself a ground for reversal, where it does not appear that this was done on the suggestion of the presiding judge,- or that his refusal of a new trial was influenced by the reduction of the verdict; nor can a new trial be granted on account of the size of the original verdict, unless the amount as found by the jury is so excessive as to lead the court to suspect bias or prejudice on their part.” Atlanta Gas Light Co. v. Sams, 29 Ga. App. 446 (4) (116 S. E. 21). “If bias or prejudice on the part of the jury infected their finding, decreasing the amount would not wholly eradicate the infection. The same bias or prejudice which prompted the finding of an excessive verdict may have had' its effect in producing the finding in favor of the plaintiff at all.” S. A. L. Ry. Co. v. Bishop, 132 Ga. 71, 76 (63 S. E. 1103). Thus, where the amount of the original verdict can not be justified by the evidence adduced, but where it is not so grossly excessive as to indicate on its face that it must have been induced by bias or prejudice, there is “no objection to allowing a plaintiff to write off from her recovery voluntarily any sum whatever. If by so doing any excess of damages found by the verdict is voluntarily relinquished, it would seem that the amount of the verdict would no longer be a cause for a new trial. Why'should there, be a new trial solely for the purpose of reducing damages, when the plaintiff had voluntarily relinquished all that could be treated as excess?” Augusta Ry. Co. v. Glover, 92 Ga. 132, 148 (15) (18 S. E. 406). In the instant case it can not be said that the size of the original verdict necessarily indicates that it was induced by bias or prejudice; and since in the instant case, just as in the case of Central Railroad v. Crosby, 74 Ga. 737 (58 Am. Rep. 463), there was a “fixed criterion for estimating damages,” and since it appears that the plaintiff voluntarily wrote off from the verdict enough of its amount to bring it within the measure of damages proved, the case is brought squarely within the ruling made by the Supreme Court in Augusta Ry. Co. v. Glover, supra.

Judgment affirmed.

Stephens, J., concurs, Bell, J., disqualified.


text:
    16214.
    Southern Railway Company v. Clark.
    Decided October 13, 1926.
    Damages; from Fulton superior court — Judge Humphries. December 23, 1924.

      McDaniel & Neely, Rembert Marshall, for plaintiff in error.

      R. B. Blaclcburn, contra.
    Appeal and Error, 4 C. J. p. 1247, n. 33 New.
   Jenkins, P. J.

The judgment rendered by this court in this case (34 Ga. App. 312, 129 S. E. 293), having been reversed on certiorari by the Supreme Court (162 Ga. 616, 134 S. E. 605), is vacated, and the judgment of the trial court, refusing to strike the petition on demurrer, is

Reversed.

Stephens and Bell, JJ., concur.


text:
    17230.
    Felder v. Neeves.
    Sales, 35 Oye. p. 392, n. 74, 76; p. 484, n. 3, 4; p. 540, n. 65; p. -573, n. 75.
   Jenkins, P. J.

1. An action for the purchase-price of goods can not be altogether defeated by a plea of total failure of consideration, unless the evidence shows that they were totally worthless for any purpose. Hardee v. Carter, 94 Ga. 482 (19 S. E. 715); Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (1) (73 S. E. 412); Clegg-Ray Co. v. Indiana Scale Co., 125 Ga. 558 (54 S. E. 538). Where, as in the instant case, the evidence clearly shows that the machine which was the subject-matter of the contract could have been repaired at a reasonable cost, and when so repaired would have performed the service for which it was purchased, a general finding of the jury in favor of the defendant, on his plea of total failure of consideration, is not supported by the evidence, and must be set aside. Trippe v. McLain, 87 Ga. 536 (13 S. E. 523).

2. “An express warranty excludes an implied warranty on the same or a closely related subject, but not an implied warranty oh an entirely different subject.” Barber v. Singletary, 13 Ga. App. 171 (1) (78 S. E. 1100). Thus, where the defense exclusively relied upon is the breach of an express warranty, the judge should not charge upon the subject of implied warranty. Compton v. Woodruff, 23 Ga. App. 803 (99 S. E. 537).

3. In a suit for the purchase-price of machineiy, while the defendant can not claim the benefit of both an alleged special warranty as to quality and the general warranty implied by the law to exist in the absence of an express warranty, he, nevertheless is entitled to set up inconsistent pleas and claim the benefit of such defense as he may, under the proof, be entitled to; and where, as here, the defendant pleads an express warranty whereby the seller guaranteed that the engine was capable of performing work of a particular kind and character, and also set up that the machinery bargained for was totally unsuited for the purposes for which it was intended to be used, the judge did not err in charging the law governing express warranties, as controlling in the case in the event the jury should find there was such an agreement, and in thereafter charging the jury what would be the alternative rule, under the law of implied warranty, in the event that they should find in favor of the plaintiff’s contention that no such express warranty had been actually made. 'Judgment reversed.

Decided October 13, 1926.

Complaint; from Clay superior court — Judge Yeomans. February 13, 1926.

A. H. Gray, for plaintiff. E. R. King, for defendant.

Stephens and Bell, JJ., eoneur.


text:
    17267.
    ALLGOOD v. FECKOURY.
    No partnership was created by the agreement that the plaintiff should conduct in the defendant’s name a store which was to be owned and supplied with goods by the defendant, and should receive an equal share of the net profits.
    The contract, being one of employment and being for no fixed period, was terminable at the will of either party, and without notice to the other party as provided for by law in the case of a partnership.
    Master and Servant, 39 O. J. p. 71, n. 57.
    Partnership, 30 Cyc. p. 360, n. 64; p. 376, n. 25; p. 377, n. 26; p. 380, n. 33.
    Decided October 13, 1926.
    Action for breach of contract; from Cobb superior court — Judge Tarver. March 9, 1926.
    This was an action for damages for an alleged breach of contract. The petition alleged that on March 24, 1924, the plaintiff and the defendant entered into a contract under the terms of which the plaintiff was t'o run a store at Roswell, Georgia; that the defendant was to furnish all goods necessary to supply the store, and it was to be run in his name and owned by him, the net profits of the business to be equally divided between the plaintiff and the defendant. It was not alleged that the contract was for any specified or definite period. Plaintiff alleged that he entered upon the performance of the contract and continued until November 18, 1924, that during that time he faithfully performed his duties thereunder, and that on the latter date the defendant, without cause, discharged him and took possession of the store. On the trial the defendant moved to dismiss the petition; the motion was sustained, and the plaintiff excepted.

      Leon M. Blair, J. P. Brooke, for plaintiff.

      J. E. Mozley, G. B. Walker, for defendant.
   Jenkins, P. J.

1. “A joint interest in the partnership property, or joint interest in the profits and losses of the business, constitutes a partnership as to third persons. A common interest in profits alone does not.” Civil Code (1910), § 3158. As between the parties themselves, “a partnership may be created either by written or parol contract, or it may arise from a joint ownership, use, and enjoyment of the profits of undivided property, real or personal.” Civil Code (1910), § 3155. As between themselves, “the intent of the parties is the true test of a partnership, which may be created by a contract giving rights or imposing liabilities differing from those from which the law ordinarily infers a partnership.” Huggins v. Huggins, 117 Ga. 151 (43 S. E. 759). Where the parties in a joint undertaking do not by the terms of the agreement purport to establish the relationship of copartners, and where the contract does not contemplate or provide for the “joint ownership, use, and enjoyment of the profits of undivided property,” and under the terms of the agreement there is no joint contribution to the stock of the enterprise, but all the assets necessary to the conduct of the business are to be furnished by one of the parties, and the business is to be “run in his name and owned by him,” the other party merely furnishing his personal services for one half of the net profits, the agreement does not, either in terms or by legal implication or effect, establish the relationship of copartners. The proportion of profits thus to be received is received not as profits, but as merely measuring wages for the services rendered. Dawson v. Ward, 120 Ga. 861 (48 S. E. 313); Sankey v. Iron Works, 44 Ga. 228; Thornton v. McDonald, 108 Ga. 3 (33 S. E. 680); Clegg v. Lyon, 30 Ga. App. 482 (118 S. E. 432). While it has been said that “liability for losses will generally be implied from proof that the contract stipulates for a division of the profits” (Davis v. Savannah Lumber Co., 11 Ga. App. 610 (4), 75 S. E. 986), such an implication can not arise where the terms of the contract clearly indicate the contrary.

3. Such a contract, being one of employment and being for no fixed period, is terminable at the will of either party, without notice as provided for in the case of partnerships by section 3161 of the Civil Code (1910). See Civil Code, § 3133; Odom v. Bush, 125 Ga. 184 (53 S. E. 1013).

3. Under these rulings the court did not err in dismissing the petition as setting forth no cause of action.

'Judgment affirmed.

Stephens and Bell, JJ., concur.