text:
    15098.
    Jones et al. v. Coweta Fertilizer Company.
    Decided October 1, 1924.
    Complaiut; from city court of Carrollton — -Judge Hood. September 13, 1923.
    The Coweta Fertilizer Company sued E. E. L. Jones as principal, and W. T. Jones and T. J. Jones as indorsers, on_a promissory note for $2,559.12. On motion W. T. Jones was stricken from the case. At the appearance term an answer was filed. At the trial term the defendants moved to amend the plea, and the court refused to allow the amendment. The case then went to trial and the court directed a verdict in favor of the plaintiif; and the defendants excepted, assigning error on each of the rulings stated.
    The substance of the disallowed amendment to the plea was as follows: After the filing of the suit on the note the plaintiif and others instituted proceedings in bankruptcy against Jones Brothers, a firm of which the defendants were members, and against them individually. The plaintiff in the present case was a nonresident and insolvent. The plaintiffs in the bankruptcy proceeding acted maliciously, and with intent to destroy the credit of the defendants, and of the partnership of which they were members, and did destroy the credit of the firm and injured it in the sum of $15,000. The defendant R. E. L. Jones was forced to employ counsel at an expense of $1,000, to file a petition in the Federal court, praying the court to allow "him to operate his farm free from the bankruptcy proceeding during the year 1923, as he was unable to secure the money with which to do so without procuring such an order. The defendants prevailed in the bankruptcy proceedings, but were forced to employ counsel, and agreed to pay a fee of $5,000 to counsel to represent them. They prayed for damages against the plaintiff, and that the damages be set off against the claim of the plaintiff on the promissory note, and that judgment be given the defendants for any balance shown.
   Stephens, J.

1. In a suit upon a promissory note, which is an action ex contractu, the defendant cannot in an action at law in a city court recover by way of set-off against the plaintiff, upon the ground that the plaintiff is insolvent or a nonresident, damages sustained by the defendant by reason of an alleged tortious act of the plaintiff in having maliciously instituted proceedings in bankruptcy against him. Hecht v. Snook &c. Co., 114 Ga. 921 (41 S. E. 74).

2. The amendment to the defendant’s plea, setting up such defense, was properly stricken.

Judgment ajfi/rmed.

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

8. Eolderness, Boylcin & Boylcin, for plaintiffs in error.

Edil & Jones, Smith & Millican, contra.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    15552.
    COOPER et al. v. MEANS.
    1. A ruling on a motion to dismiss a petition cannot be questioned by a ground contained in a motion for new trial. Gibson v. Mason, 31 Ga. App. 584 (121 S. E. 584); Taff v. Larey, 29 Ga. App. 631 (2) (116 S. E. 866) ; Gunn v. Johnson, 29 Ga. App. 610 (116 S. E. 921).
    '2. The' jury on this action of trover for the recovery of lumber found a money verdict for the plaintiff. The issue made by the evidence was whether, as the plaintiff contended, he contracted to purchase such lumber as should be sawed by the defendants at a certain site for the market price prevailing on the date of completion of the sawing and of a settlement between the parties, and whether such settlement was actually made on September 24, 1923, vesting title in the ■ plaintiff to the lumber sued for; or whether, as the defendants contended, the plaintiff contracted in April, 1923, for the purchase of the lumber at the higher market price at that time prevailing, and whether such contract had not been executed, and no settlement had been made so as to vest title in the plaintiff, for the reason that he refused to pay to the defendants the higher market price contracted for. On this issue, although the testimony was conflicting, there was some evidence authorizing the verdict; and this court, on contentions based chiefly on the weight of the evidence, cannot interfere with the discretion of the trial judge in refusing a new trial.
    Decided October 1, 1924.

      Trover; from Monroe superior court — Judge Persons. ' March 19, 1924.

      A. M. Zellner, for plaintiff in error.

      Willingham, & Willingham, contra.
   Jenkins, P. J.

The circumstances of-the transaction are such as would seem easily to afford occasion for honest misunderstanding and difference of opinion as to what constituted the exact agreement. There was evidence for the defendants, sustaining their understanding of the transaction; but, since the jury, which alone has power to determine disputed issues of fact, has found in favor of the contrary testimony for the plaintiff, sustaining his understanding of the transaction and agreement, it only remains for this court to show by the testimony disclosed by the record that the verdict was not without evidence to support it.

On direct examination, W. V. Means, the plaintiff, testified: “It was about April 20, 1923, Mr. Ed Elynt (one of defendants) came to Culloden and told me he had a piece of timber he wanted to buy, and I asked him what it would be. . . He did come back, and told me it was the Worsham timber. . . So he says, ‘What will you give me for the lumber?’ . . I said, ‘You will have to take the market price. I would not buy it at this price now.’ . . I had a business transaction in September, 1923, at my place of business at Culloden with Mr. Ed Elynt, when Elynt told me that he had finished the site and would let me send a man out there and check up the lumber. It was checked up. These figures here show the original checking. . . The checking was done on September 17, 1923. Mr. Elynt came to my store and wanted to have a settlement on the yard, and we had a statement on it, and agreed on the price and everything there in the store, and I made a bill of it and gave him the original, and I kept a carbon copy of it. I paid him for 158,899 feet at $16, which would be $2,542.38, less 2% would be $50.84, which makes $2,491.54. After that, he (Elynt) told me to send the trucks out there and begin hauling the lumber. At that time Cooper (the other_ defendant) and Elynt owed me $2,883.98, and we note a difference in what lumber they had come up short, and they owed me $454.44. I have my ledger showing the transaction I have just testified about (ledger exhibited). At that time I allowed them $16 for the lumber. It seemed to be agreeable to Mr. Elynt. Elynt said that he had to have some money for the Georgia Hardware Company, that he owed them $59, and I gave him a check for that amount after we had a settlement. The date of the settlement was September 24; 1923. I have not gotten my lumber. . . On the day after the settlement, which was September 25, 1923, Mr. Flynt stopped the trucks from hauling lumber. . . The lumber I failed to get then is the lumber I am suing for.”

On cross-examination the plaintiff further testified: “This lumber is my lumber. Mr. Cooper and Flynt sold it to me. . . I bought this lumber on September 24, 1923. I had title to this lumber during August, 1923, and up to September 24, 1923. The only trade I ever had with Mr. Flynt was: he was to let me have the lumber at the prevailing price at the time he got it out; and if I could not give the price of the lumber, he would get my money up and return it and take back his lumber. This was some time in April, 1923, when I gave a check to Cooper and Flynt for $600. . . I did not agree to pay Cooper and Flynt $18 per thousand. I did have a definite understanding with Cooper and Flynt on September 24, 1923, about the price of lumber. I agreed to pay them $16 per thousand. . . I had a settlement with Cooper and Flynt, and gave Mr. Flynt the original bill, and here is the carbon copy.” The daughter and sister of the plaintiff corroborated the testimony of the plaintiff with reference to the actual settlement, which he testified had been made on September 24, 1923.

The only ground of the motion for a new trial other than the general grounds is the one referred to in the first headnote.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    14839.
    Streetman v. Turner.
   Stephens, J.

1. Crops produced upon rented premises are by operation of law incumbered with the landlord’s lien for supplies unpaid for, furnished by him to the tenant to make the crop, although such lien has not been foreclosed by levy as provided for by statute. Cochran v. Waits &c. Co., 127 Ga. 93 (56 S. E. 241).

2. A third person, who, with knowledge of the existence of such a lien, wrongfully and fraudulently interferes for the purpose of impairing and destroying the value of the lien of the landlord by purchasing the property from the tenant and afterwards disposing of it, is liable to the landlord for any loss or damage sustained by reason of sueli wrongful interference. DeVaughn v. Harris, 103 Ga. 102 (29 S. E. 613); Harris v. Grant, 96 Ga. 211 (23 S. E. 390); Benton v. McCord, 96 Ga. 393 (23 S. E. 392); Reid v. Matthews, 102 Ga. 190 (29 S. E. 173, 66 Am. St. R. 164); Anderson v. Adams, 117 Ga. 919 (43 S. E. 982).

Decided October 2, 1924.

Complaint; from Milton superior court — Judge Blair. June 15, 1933.

J. P. Brooke, for plaintiff. G. F. Gober, for defendant.

3. Where such third person afterwards sells the crops and pays part of the proceeds thereof to the landlord in discharge of rent due by the tenant to the landlord, the acceptance of such payment by the landlord, even with knowledge of all the facts, will not as a matter of law amount to a settlement of the landlord’s claim against the person who has taken and sold the property.

4. The tenant is not a necessary party to such a proceeding.

5. Applying the above rulings, the petition by the landlord in this case, against the person acquiring the property from the tenant, set out a cause of action, and was improperly dismissed on demurrer.

Judgment reversed.

Jenloins, P. J., and Bell, J., concur.


text:
    15025.
    Mayor and Aldermen of Milledgeville v. Holloway.
   Stephens, J.

1. The duty of a municipality to keep its streets in a reasonably safe condition for travel is ministerial, and it is liable in damages to a person sustaining injuries proximately caused by its failure to discharge this duty. Mayor &c. of Savannah v. Jones, 149 Ga. 139 (4) (99 S. E. 294); Brown v. Mayor &c. of Milledgeville, 20 Ga. App. 392 (93 S. E. 25).

2. Where, at the intersection of two narrow streets in a city, both of which are flanked by ditches on either side, the roadways are muddy and slick and likely to cause automobiles traveling thereon, when turning from one' street into the other, to skid and fall into one of the ditches, and where such a turn by a traveler upon one of the streets is made imperative by the existence of an impassable obstruction, maintained in the street by the city, immediately beyond the intersection, which obstruction cannot, by reason of its occultation by a hill in the street, be seen by the traveler until he has come within about 210 feet of the intersecting street, and where the automobile of the traveler, in turning into the intersecting street, skids into an adjacent ditch four feet in depth, which is not protected by a guard-rail or other protection, the inference is authorized that the city, in maintaining the streets under such conditions, was negligent, and that such negligence was the proximate cause of any injury sustained by the traveler as a result of his automobile falling into the ditch. City of Atlanta v. Wilson, 59 Ga. 544 (27 Am. R. 396); Barrett v. Mayor &c. of Savannah, 13 Ga. App. 86 (78 S. E. 827); City of Greensboro v. Robinson, 19 Ga. App. 199 (91 S. E. 244).

Decided October 2, 1924.

Action fox damages; from Baldwin superior court — Judge Park. September 1, 1923.

D. S. Sanford, Henry G. Hammond, for plaintiff in error.

Allen & Pottle, contra.

3. A lawful act may be considered along with other acts as constituting negligence. Williams v. Mayor &c. of Washington, 142 Ga. 281 (82 S. E. 656, L. R. A. 1915A, 325, Ann. Cas. 1915B, 196); City of Greensboro v. Robinson, supra. The act of the city in maintaining the obstruction in the driveway along which the plaintiff was traveling, which was a fence lawfully placed there by the city for the purpose of obstructing travel while performing its duty in repairing the street, although a lawful act, may nevertheless be considered along with other acts alleged in the petition as tending to establish negligence on the part of the city.

4. Under the foregoing rulings the petition in a suit by the traveler against the city, to recover for an injury thus sustained, set out a cause of action, and the court did not err in overruling the general and special demurrers interposed thereto.

Judgment affirmed.

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


text:
    15224.
    Stembridge v. Milton.
   Stephens, J.

1. The acquisition of personal property from one having the •custody thereof but having no authority from the owner to surrender its possession to another affords probable cause for the issuance of a possessory warrant by the owner for its recovery.

2. In an action for malicious arrest and malicious use of legal process, predicated upon the arrest of the plaintiff under a' possessory warrant sued out by the defendant for the recovery of certain cross-ties which had come into the plaintiff’s possession, the petition fails to allege a want of probable cause where it alleges that the cross-ties, as the property of the defendant, had been acquired from the defendant’s wife at the defendant’s home, and where it does not appear that the wife in parting with the property, had authority from the owner to do so.

3. Construing the allegations of fact in the petition most strongly against the pleader, an allegation that when an intermediary, who was the person who had obtained the cross-ties from the defendant’s wife, delivered them- to the plaintiff, he informed the plaintiff of the facts of the transaction which the intermediary had had with the defendant’s wife, “who,” as the petition here alleges, “was the agent and representative of the” defendant, is no more than an allegation that the wife, at the time the intermediary made the communication to the plaintiff, was the agent and representative of the defendant; and such allegation will not be construed as alleging that the wife, at the time she surrendered the possession of the cross-ties to the intermediary, was the agent of the defendant, or that, as such agent and representative, she had authority to surrender the possession of the defendant’s property.

Decided October 2, 1924.

Action for malicious prosecution; from Gilmer superior court— "Judge Blair. November 9, 1923.

The opinion of Judge Blair, sustaining 'the demurrers, was as follows: “The plaintiff bought six cross-tij^phich had been wrongfully taken from the possession of the defendant; and, because the defendant' pursued the remedy prescribed by statute for repossessing himself of his ties, the plaintiff brought this action for the recovery of damages. In my opinion the action cannot be maintained, for the reason that the petition shows no actionable wrong done by the defendant to the plaintiff.

“Vick had sold and delivered to the defendant six ties, and, going back later for his pay and finding the defendant absent from home, he took six ties from those in the possession of the defendant ‘in the place and stead of the six which he had delivered to the said defendant/ and sold them to the plaintiff. Vick’s taking was wrongful, and the plaintiff’s possession was wrongful, for he took with full knowledge of the facts. The defendant was in the rightful possession of the ties acquired from Vick, and under the allegations of the petition, 'Vick could not have rescinded the sale, even had he pursued legal remedies. The sale to the defendant is not alleged to have been a cash transaction, and no fraud is charged. If Vick’s debt was due, he had his remedies to recover the price of his ties, but no right to take the ties out of the defendant’s possession without the defendant’s consent and without legal procedure. Under no theory of the law, with or without legal process, did Vick have any right to take and carry away other property of the defendant, without the defendant’s consent, as for or in satisfaction of Vick’s claim against the defendant.

“The defendant was away and did not consent. His wife had no authority cto pay for any cross-ties while he was away/ and therefore she could not consent for him that his property be taken in payment of, or exchange for, tics previously bought by him. Vick’s taking was wrongful.

4. An allegation in tlie petition that the defendant had dismissed the possessory-warrant proceedings is an allegation that the proceedings upon the possessory warrant had terminated favorably to the defendant' therein.

5. The petition otherwise set out a cause of action; and direction is given that until the remittitur of this court is made the judgment of the trial court, the plaintiff be allowed to amend the petition to. meet the defect pointed out in paragraph 3 above.

Judgment affirmed, 'with direction.

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

“The defendant was entitled to recover possession of his ties, and possessory warrant was the appropriate remedy therefor. So far as appears, the possessory warrant was regular in form and in its execution. Nothing to the contrary is alleged, and, if we adopt the plaintiff’s allegations as the evidence introduced or that might have been introduced on the trial of the possessory warrant, there could be but one legal judgment rendered thereon, to wit, a judgment awarding the possession of the ties to the plaintiff in the possessory warrant. The defendant here being entitled, under the ¿negations, to recover in the possessory-warrant case, it cannot be said that the swearing out of the possessory warrant was without probable cause. For the same reason, it cannot be' said that the plaintiff’s arrest under the said warrant was illegal or wrongful. The conclusion reached is that the plaintiff is not entitled to recover under either count, and the general demurrers are sustained.”

Morris, Hawkins & Wallace, for plaintiff.

Wood & Vandiviere, for defendant.


text:
    15237.
    Howard v. Franklin.
   Stephens, J.

1. A cropper is one wlio works for wages payable in part of the crop produced, and is a laborer, and, as such, may maintain a laborer’s lien upon the crop as the property of his employer. Civil Code (1910), §§ 3705, 3707, 3334, 3335; McElmurray v. Turner, 86 Ga. 215 (12 S. E. 359); Lewis v. Owens, 124 Ga. 228 (52 S. E. 333); Faircloth v. Webb, 125 Ga. 230 (53 S. E. 592); Garrick v. Jones, 2 Ga. App. 382.

2. A laborer who is entitled to the earnings of his wife.and minor child may assert a lien in his own name and for his own use for labor contracted for and performed by them. McElmurray v. Turner, supra; Cox v. Adams, 5 Ga. App. 296 (63 S. E. 60).

3. In a suit to foreclose a laborer’s lien for labor performed by his daughter, where the evidence is silent as to her minority, but where she was present in court as a witness, in full view of the judge and jury, who from observation might have determined that she was a minor, a verdict found for the plaintiff, in so far as it is predicated' upon the minority of the daughter, is not without evidence to support it.

4. The affidavit of foreclosure of the laborer’s lien in this ease contains sufficient allegations to entitle the affiant to a laborer’s lien upon the property levied on. The evidence is sufficient to authorize a recovery by the plaintiff for labor performed by himself and his wife and minor daughter, and also to establish the plaintiff’s right to a' lien upon the property levied on.

Decided October 2, 1924.

Lien foreclosure; from city court of Claxton — Judge Elmore. November 2, 1923.

8. T. Brewton, W. 0. Warnell, for plaintiff in error.

Judgment affirmed.

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


text:
    15246.
    Luke v. Luke.
    Decided October 2, 1924.
    Affidavit of illegality; from Berrien superior court — Judge Dickerson. October 4, 1923.

      J. D. Lovett, J. P. Knight, W. D. Buie, B. A. Hendricks, for plaintiff in error.

      Franklin & Langdale, J. A. Alexander, contra.
   Stephens, J.

1. Where a trial court has not been adjourned five days before the commencement of the next regular term, as provided in the Civil Code (1910), § 4877, it is nevertheless open and may render judgments as in term time before its actual adjournment, although the judgments rendered are within five days of the commencement of the next regular term of the court. Horkan v. Beasley, 11 Ga. App. 273 (75 S. E. 341); King v. Sears, 91 Ga. 577 (18 S. E. 830).

2. A judgment in an alimony suit against a surety upon a supersedeas bond given by the defendant for the “eventual condemnation money” may, when the remittitur from the appellate court is received, affirming the judgment, be rendered for the full amount of all the accrued unpaid installments due at the time of the entering of the judgment upon the supersedeas bond, which necessarily represents the eventual condemnation money. Civil Code (1910), §6165; Lockwood v. Saffold, 1 Ga. 72; Holleman v. Holleman, 69 Ga. 676; Osborne v. Osborne, 146 Ga. 344 (91 S. E. 61). This case is distinguishable from the cases of Corbin v. McCrary, 23 Ga. App. 780 (99 S. E. 472); Kendrick v. Battle, 24 Ga. App. 676 (101 S. E. 812); McCrary v. Corbin, 25 Ga. App. 262 (103 S. E. 194).

3. Attorney’s fees awarded the plaintiff are recoverable in her name. Van Dyke v. Van Dyke, 125 Ga. 491 (54 S. E. 537).

4. Such a judgment hears interest. Civil Code (1910), §3432.

5. The judgment rendered against the surety upon the supersedeas bond was not excessive in amount, and was not otherwise illegal:

6. The affidavit of illegality set out no defense, and was properly stricken on demurrer.

Judgment affirmed.

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


text:
    15038.
    Proudfit v. Burney Brothers Company.
    Decided October 2, 1924.
    Action for damages; from city court of Macon — Judge Gunn. August SO, 19S3.
   Stephens, J.

1. Where a gutter-pipe which drains the roof of a landlord’s building overhangs the roof of a lower building of an adjacent landowner, and by reason of a worn out and defective condition discharges water upon its roof, the landlord’s failure to repair the pipe so as to prevent such discharge of water is not the proximate cause of damage to the tenant from water leaking through from the landlord’s roof upon the tenant where the water had been caused to settle upon the roof by the act of the adjoining landowner in stopping up and plugging the opening from the landlord’s roof into the gutter. The landlord is not liable upon the principle that the intervening act of the adjoining owner in plugging the drains could have been foreseen, where the only notice that the landlord had of the immineney of such act was notice from the adjoining owner that he would, in the event of the landlord’s failure to repair the pipe, proceed to stop the water from damaging his property, and the notice did not intimate that in so doing the adjoining owner would plug the drain in the manner in which he did, or that he would so remedy the situation as to cause the water to settle on the landlord’s roof.

2. The notice given to the landlord by the owner of the adjoining building that the drain-pipe was in a leaking condition, and that if the landlord failed to repair it he would proceed to stop the water from damaging his property, constituted no notice of any future defect in the rented premises, afterwards created by ’the act of the adjoining owner in stopping the drain-pipe and causing water to accumulate on the landlord’s roof. Since the adjacent owner’s notice to the landlord of his intention to remedy the defect in the gutter-pipe, so as to prevent the water from damaging his property, was not notice of any existing defect in the rented premises, and contained no intimation that in so doing the landlord’s roof would be rendered defective, such declared intention was not sufficient to create any duty on the part of the landlord to anticipate that his premises would be rendered defective by any act of the adjacent owner. The landlord therefore was not placed under a duty to watch the actions of the adjoining owner in anticipation and apprehension that the latter would do some act to render the landlord’s premises defective.

3. Where under such conditions the landlord had no notice of the defective condition in the roof which caused the water to accumulate thereon to the tenant’s damage, the landlord owed no duty to the tenant, and the tenant had no cause of action against the landlord for damage caused to the tenant’s property by water leaking thereon from the roof. In a suit by the tenant against the landlord, to recover for such damage, the court erred in overruling the defendant’s general demurrer to the petition.

Judgment reversed.

Jenldns, P. J., and Bell, J., concur.

Application for certiorari was denied by tlie Supreme Court.

Ryots & Anderson, for plaintiff .in error.

E. 17. Maynard and Powers & Powers, contra.


text:
    15135.
    Georgia Fertilizer & Oil Co. v. Nix, sheriff et al.

    Decided October 3, 1924.
    Money rule; from city court of Nashville — Judge W. B. Smith. October 16, 1923.

      R. A. Ilendrichs, for plaintiff. J. D. Lovett, for defendants.
   Stephens, J.

1. Upon the hearing in response to a rule against a sheriff to show cause why certain funds arising from the sale of property covered bj7 a mortgage execution for the principal sum of $164.34, which had been placed in his hands for collection, should not be paid to the plaintiff in execution, where the answer of the sheriff and the undisputed evidence showed that the sheriff had in his possession funds (the amount not appearing) realized from the sale under the execution of the mortgaged property, and lie attempted to justify his failure to pay any part of the funds to the plaintiff in fi. fa. upon the ground that the funds were impressed with an alleged superior lien by reason of another execution against'the same defendant for the principal sum of $55.40, which had been- placed in the sheriff’s hands, and that the latter execution was of “anterior date” to the mortgage execution in favor of the plaintiff, and where it did not appear that the execution relied upon by the sheriff as a justification for withholding the funds from the plaintiff in the mortgage execution was issued upon a judgment older than the mortgage, the answer and evidence of the sheriff were insufficient to justify his conduct and to authorize the finding which was made in his favor. Standard Oil Co. v. Cole, 108 Ga. 227 (33 S. E. 825).

2. In such a ease, where the plaintiff in the mortgage execution charges that the 'sheriff has in hand sufficient funds arising from the sale of the property levied on to satisfy his execution, and the sheriff admits that he has in his hands funds arising from such sale, but where the amount of such funds in the sheriff’s hands nowhere appears, no inference arises that he has not in his hands funds sufficient to pay both executions, and a judgment in favor of the sheriff would be unauthorized. O’Pry v. Kennedy, 86 Ga. 662 (2) (12 S. E. 94).

3. The above rulings render it unnecessary to pass upon any of the other assignments of error.

4. The judgment of the trial judge, acting without the intervention of a jury, finding in favor of the sheriff as defendant, was unauthorized. Southern Ry. Co. v. Atlanta Stove Works, 128 Ga. 207 (4) (57 S. E. 429). Judgment reversed.

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


text:
    14874.
    Wilson v. Southern Bell Telephone & Telegraph Company et al.

   Stephens, J.

1. A telephone company which maintains a telephone system and furnishes service to the public, and in the operation of its system furnishes to a hotel a switchboard, together with plugs and other accompanying appliances, used in making telephonic connections between the various telephone stations in the rooms of the hotel and the outside public, and whose duty it is to maintain a switchboard and accompanying appliances and to keep them in working order, is, for a breach of such duty, liable in damages to an employee of the hotel, lawfully operating the switchboard, who is injured as the proximate result of a breach of such duty in failing to keep certain of the appliances relating to the switchboard in repair.

2. The relation between the proprietor of the hotel and the switchboard operator employed by him is that of master and servant, and the employer, as such master, is under a duty to the operator to maintain the switchboard and its accompanying appliances in a reasonably safe condition for the purpose of being operated with ordinary care and diligence. For a breach of such duty the hotel employer is liable for any injury sustained by the operator while in the performance of her duties in operating the switchboard, proximately resulting from a defective condition in any of the accompanying appliances of the switchboard used by her in the discharge of her duties, where the defective condition was known to the employer but not known to the operator, and could not by due care have been discovered by her, and her means of discovering it were not equal to those of the employer. Civil Code (1910), § 3131; Atlantic & B. R. Co. v. Reynolds, 117 Ga. 47 (43 S. E. 456); Foster v. Walker Roofing Co., 139 Ga. 431 (77 S. E. 581).

3. A failure upon the part of either the telephone company or the hotel proprietor to remedy the defect after notice of a defective condition in the switchboard, which caused an injury to the operator, authorizes an inference of negligence upon the part of the telephone company or the hotel proprietor as the case may be.

4. Where the operator, in operating the switchboard, becomes so engrossed in her duties by reason of “hundreds of calls [pouring] in every minute,” and relies upon the assurances of the telephone company and the hotel proprietor that the switchboard and its appliances are safe for her to operate, and, in performing her duties, she is injured by a piece of brass, which has become loose on one of the plugs, sticking into her finger as she inserts the plug into a hole in the switchboard, which it is necessary to do in order to make the connection, and which plug she has reached for and selected from about twenty or twenty-four plugs before inserting it into the hole, and where she has no knowledge that the plug which she picked up and which caused the injury is defective, it cannot be determined as a matter of law that she could by the exercise of due care have discovered the defective condition of the plug causing the injury, or that she had equal means with the master of discovering the defective condition, but it is inferable that she had no opportunity, by the exercise of due care, to discover the defective condition causing the injury, and that she did not have equal means with the Hotel proprietor of discovering the defective condition. It is therefore inferable that her injury was not caused by her own negligence.

Decided October 4, 1924.

Action for damages; from Fulton superior court — Judge Humphries. May 8, 1923.

Walter A. Sims, J. E. Berman, for plaintiff.

McDaniel & Neely, H. L. Greene, for defendants.

5. Applying the above rulings in a suit by the operator against the telephone company and the hotel proprietor to recover for injuries thus sustained, the plaintiff’s petition set out a cause of action, and was improperly dismissed upon general demurrers as to both defendants.

Judgment reversed.

Jenlmis, P. J., and Bell, J., concur.


text:
    14840.
    Weinstein, agent, etc., v. Schacter Brothers.
   Stephens, J.

1. Where a written lease recites that the rent contracted to be paid is evidenced by promissory notes given by the tenant, the notes become a part of the contract, and a stipulation therein to the effect that they are “to be surrendered in case the building is rendered untenantable by fire,” although not contained in the lease, is enforceable between the parties to-the lease, to- all intents and purposes, as a part thereof. The fact that the notes were executed on a date subsequent to the execution of the lease- is - immaterial.

2. A contract under seal may by its terms, by proper identification and reference thereto, incorporate as a part thereof an instrument not under seal. The fact that the promissory notes referred to in the leas'e contract and made a part thereof were not‘under seal will not’preclude them from becoming a part of the lease which was executed under seal.

3. Where the notes executed and delivered to the landlord as evidence of the rent contracted for in the- lease purport to be signed in his individual capacity by one of the members of the partnership ■ which had executed the lease, although the partner executing the lease in behalf of the partnership was another person, it is inferable that the person executing the notes did so as the authorized agent of the partnership and with intention to bind the partnership.

4. A provision in each one of the notes given for the deferred payments of rent and which is -a part of the contract of rental, providing that “this note is to be surrendered in case the building is rendered untenantable by fire,” renders the tenants’ obligation to pay rent-for the entire term void in the event the building rented is rendered “untenantable by fire;” and, since the obligation of the tenants to pay rent and the obligation of the landlord to furnish to the tenants the rented building are reciprocal and correlative, the contract in such event is at an end.

5. A provision in the contract of rental fixing the rights of the parties in the event of damage to the building rented by fire, must be construed with due reference to the rights fixed by such contingency, as well as to the subject-matter of the contract, taking into consideration the nature of the tenants’ business conducted in the building and the purposes for which the building is rented.

Decided October 4, 1924.

Distraint; from Bibb superior court — Judge Malcolm D. Jones. May 31, 1923.

Harris, Harris & Witman, for plaintiff.

Hatcher & Smith, for defendants.

6. Where the building rented was a storehouse suitable for a mercantile business, and the tenants were a mercantile partnership and actually conducted a mercantile business when occupying the building under the contract of rental, it was clearly within the contemplation of the parties that the building was to be used for the conduct of the tenants’ mercantile business, and that the provision in the lease as to the untenantability of the premises as a result of fire is to be construed with reference to the nature of the business conducted.

7. Under such a contract the building becomes untenantable when as a result of fire it becomes damaged to such an extent that it is unfit for the tenant to carry on the mercantile business therein. Such a condition would exist where the building could not be restored to a condition suitable for such purposes by such repairs as could be made without an unreasonable interruption of the business of the tenant. Wolff v. Turner, 6 Ga. App. 366 (65 S. E. 41). See also Snook &c. Co. v. Steiner, 117 Ga. 363 (43 S. E. 775); 4 Words and Phrases (2d series), 1096. Such a ease, is distinguishable from one in which a provision in the contract of lease abates the rent in the event of a fire merely until the landlord can restore the property, and where, if the building is not substantially destroyed, the tenant cannot partially occupy it and be relieved from paying rent. See, in this connection, 2 Underhill on Landlord and Tenant, 792.

8. This being a suit by the landlord against the tenants to recover the unpaid rent for the remainder of the term, where the tenants defended upon the ground that they had been absolved from their obligation to pay, by reason of the building rented having been rendered untenantable as a result of fire, the trial judge properly admitted the notes in evidence as a part of the contract between the parties and did not err as against the plaintiff in the charge to the jury.

9. The evidence authorized the finding that the rented building had become untenantable within the meaning of the contract. The verdict found was authorized, and no error of law appears.

Judgment affirmed.

Jenhins, P. J., and Bell, J., concur.


author: Bloodworth, J.

text:
    15266.
    Fugazzi & Co. v. Davis, director-general.
    Decided October 7, 1924.
    Certiorari; from Fulton superior court — 'Judge Humphries. November 2, 1923.

      Noah J. Stone, for plaintiffs in error.

      Kendrick L. Scott, contra.'
   Bloodworth, J.

The court did not err either in refusing to dismiss the certiorari or in ordering that the case be “reinstated in the municipal court of Atlanta for another trial.”

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


author: Luke, J.

text:
    15283.
    Cloud v. Bank of Oglethorpe.
    Decided October 7, 1924.
    Complaint; from city court of Oglethorpe — Judge Duke Davis presiding. December 12, 1923.

      Gilbert 0. Robinson, Jule Felton, for plaintiff in error.

      John M. Greer, John B. Guerry, contra.
   Luke, J.

The evidence authorized the verdict, and the special assignments of error as to rulings upon the admissibility of evidence show no reversible error.

The request for damages upon the ground that the writ of error was sued out solely for delay is denied.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    15284.
    Clark v. Athens Railway & Electric Co.
    Decided October 7, 1924.
    Action for damages; from Clarke superior court — Judge Fort-son. December 1, 1923.

      Horace & Frank Holden, Stephen G. Upson, for plaintiff.

      John J. Strickland, Erwin, Erwin & Nix, for defendant.
   Bloodworth, J.

1. When all the facts are considered and the excerpts from the charge, of which complaint is made, are read in connection with the remainder of the charge, there is no error in any of them that requires the grant of a new trial.

2. There is ample evidence to support the finding of the jury, and the judge did not err in overruling the motion for a new trial.

Judgment affirmed,.

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


text:
    15303.
    BRAY v. COMER MERCANTILE COMPANY.
    “It is permissible to show that a promissory note, signed by one or more persons and apparently complete, is not in fact complete, by reason of the fact that it has never been delivered from one party to the other as a finally completed contract, but that it was simply left in the possession of the payee until some additional person should sign it before it should become a completed contract.” The court erred in striking paragraph 5 of the defendant’s plea.. It alleged a condition precedent to the note becoming an enforceable obligation, and evidence should have been permitted to go to the jury on this question.
    Decided October 7, 1924.
    Complaint; from Madison superior court — Judge W. L. Hodges. November 23, 1923.
    Comer Mercantile Company brought suit against Sol. B. Bray on two promissory notes. One was for the principal sum of $199.00, and recited that “this note is' given to cover the balance of J. M. Patterson 1918 account.” The other was for the principal sum of-$793.92, and recited that it was for “value received,” and made no reference to J. M. Patterson. Both notes called for interest and attorney’s fees. They were signed by the defendant only. The defendant filed a plea, the 5th paragraph of which, so far as pertinent here, is as follows: “Further answering, this defendant says that said notes were signed' conditionally, and were not to be binding against this defendant until certain conditions were complied with; that said conditions have not been complied with’, and said notes are not, therefore, binding upon this defendant. Said notes were given for an account due by John M. Patten, and not for any debt or obligation that this defendant had contracted with plaintiff; that defendant only'agreed to sign said note on condition that Maud Patten Hix and Buford Patten should sign same, and said note was to be delivered to defendant, and not to be a binding obligation against defendant, unless said'other parties signed said note; that plaintiffs failed to comply with the agreement, and this defendant is not bound.”- The defendant filed an amendment to his plea, the first paragraph of which is as follows: “That he signed the $793.92 note conditionally if same were not correct same to be corrected, that same is incorrect and should be for $230.74 with interest 4/26/18.” The plaintiff moved to strike paragraph 5 of the original plea and paragraph 1. of the amendment set out above, and the motion was sustained.. To this ruling the defendant .excepted pendente lite, and he assigns error thereon .in the bill of exceptions. The case went to trial on the remaining issue, and. a verdict was rendered in favor of the plaintiff. The defendant.filed a-mor tipn for a new trial, .on the general grounds, and an amendment thereto, alleging error on the striking of paragraph 5 of his original plea and answer. Upon the overruling, of the motion for .a new trial he excepted. , , . . .

      Clarence B. Adams, for plaintiff in error.

      Berry T. Moseley, cpntra.
   Bloodworth, J.

-(After stating the foregoing facts.) The only point insisted upon in the brief of counsel for the plaintiff in error is the alleged error in striking paragraph 5 of the plea. The special ground of the motion for a new trial complaining of the striking of this paragraph cannot be considered, since “a ruling of the court in striking a plea cannot be made the ground of a motion for a new trial.” Wilkinson v. State, 18 Ga. App. 330 (1) (89 S. E. 460), and eases cited. However, exceptions pendente lite having been filed to the striking of this paragraph, the question is properly raised by an assignment of error in the bill of exceptions.

We think the court erred in striking, paragraph 5 of the plea. Where a written, unambiguous contract has been executed and delivered, as contemplated in law, parol or extrinsic evidence of a prior or contemporaneous oral agreement should not, generally, be admitted, unless reference to the oral agreement is made' in the written contract. But a full conception of the words “as contemplated in. law,” as here applied, is necessary to a complete comprehension of the rule as above stated. A mere manual or physical delivery of a written contract is not necessarily a delivery as contemplated in law. To make the delivery one contemplated in law, it must be accompanied by an intention to make it an enforceable obligation. As quoted with approval by Justice Fish in the case of Reese v. Fidelity Mutual Life Asso., 111 Ga. 486 (36 S. E. 637), “While actual or manual delivery is not indispensable to the delivery of a note, still it must appear that the maker, in some way, exercised an intention to make it an enforceable obligation against himself according to its terms, by surrendering control over it and intentionally placing it under the control of the payee, or of some third person for his use.” And in the case of Hansford v. Freeman, 99 Ga. 379 (27 S. E. 706), Justice Atkinson said: “By delivery is to be understood, not the mere manual tradition of the paper by the maker to another, but such a delivery accompanied with a present purpose to invest the payee with the right, upon its maturity, to demand its payment.”

While “it is not permissible to show by parol that a note was delivered to the payee as a completed contract, but upon a promise upon his part that he would subsequently secure-the signature of another person thereto, where the writing is silent as to any such promise on the payee’s part,” still “it is permissible to show that a promissory note, signed by one or more persons and apparently complete, is not in fact complete, by reason of the fact that it has never been delivered from one party to the other as a'finally completed contract, but that it was simply left in the possession of the payee until some additional person should sign it before it should become a completed contract.” Pidcock v. Crouch, 7 Ga. App. 299 (1) (66 S. E. 971). The distinction between these rules is that in the first instance the execution and delivery of the note is in fact complete, and is in no way dependent upon a fulfillment of the contemporaneous promise of the payee to secure another signature to the note. In the second instance the securing of another signature is a condition precedent to the completion and to the binding force of the written contract.

In this case, while the note is in the manual possession of the payee, it was placed in his possession with the understanding and agreement that it was not to become binding until the other signature was secured; and until such signature was secured there was no legal delivery of the instrument. In the case of Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 S. E. 590), Judge Russell marshalled many decisions and dealt at much length with this question. See the second division of the opinion, pages 590 to 600 inclusive. In that opinion he said, “ Ordinarily, however, there can be no doubt that parol or other extrinsic evidence is admissible to show that a writing bearing every earmark of a complete and perfect contract is not in fact a contract at all, because of the nonperformance of a condition precedent as to which the contract is silent. . . Accordingly it may be shown by extrinsic evidence that the writing involved is not a valid or enforceable legal obligation, for the reason that it does not possess finality of utterance; that there never has been an agreement that the writing is a completed and finally-uttered embodiment of all the terms of a contract presently operative and binding.” Judge Russell then illustrated the principle by quoting from or discussing numerous decisions, the substance of which is that generally parol evidence is admissible to show that an ordinary promissory note, or other written contract, executed and physically delivered to the payee, was delivered on condition that it was not to become binding until signed by some other person or persons, or until the happening of some event, and that this is true even though the written instrument is silent as to such condition precedent. See also- headnote 3, p. 584.

Of course, what has been said applies only as between the original parties. A bona fide transferee or innocent holder of a note which has not matured, which is apparently complete on its face, and which bears no reference to any condition precedent to be performed, would not be defeated in the collection of the note because of the non-performance by the original payee of a condition precedent to its validity. As between an innocent purchaser for value and the maker of such a note, the maker must suffer, because he put it in the power of the payee to place the note in circulation. “When one of two innocent persons must suffer by the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss.” Hancock v. Empire Cotton Oil Co., 17 Ga. App. 184 (86 S. E. 434).

Be it understood that nothing herein infringes upon or beclouds the so-called parol-evidence rule. We recognize the importance of a strict adherence to and enforcement of this rule, especially in this day when negotiable instruments are used in business transactions as freely as currency. Admitting parol evidence to show the non-performance of a condition precedent to the validity of a written contract is not varying the terms of a written contract by extrinsic evidence, for the simple reason that it shows that, because of the non-performance of the condition precedent, there is no contract in existence, and that therefore there is nothing to which to apply the excluding rule. Evidence as to a condition precedent, or an event which is to take place before a proposed contract is to become valid, does not vary the terms of the contract, but rather shows whether or not there is such a contract in existence. As stated in the Heitmann case, supra (p. 591), “The so-called parolevidence rule presupposes the existence of a valid contract; and on the question of whether or not a contract is in existence or has been created, generally parol or other evidence dehors the writing is always competent and legal.”

In the light of the foregoing decisions we now come to the exact question in this case, which, briefly stated, is: Did the stricken plea allege a condition precedent? We think it did. As shown by the foregoing statement of facts the stricken plea alleged “that said notes were signed conditionally and were not to be binding against this defendant until certain conditions were complied withj that said conditions have not been complied with, and said notes are not therefore binding upon this defendant,” and further alleged the conditions. Under the facts of this case and the authorities cited, this was an allegation of a condition precedent, and the plea- should have been allowed to stand, in order that evidence on the question could have been submitted to the jury.

Judgment reversed.

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


author: Bloodwokth, J.

text:
    15387.
    Williams v. Thompson.
    Decided October 7, 1924.
    Action for assault and battery; from city court of Thomasville— Judge Hammond. January 24, 1924.

      Titus & Deicle, for plaintiff in error.

      W. W. Alexander, H. J. MacIntyre, contra.
   Bloodwokth, J.

1. In instructing the jury in this case the judge clearly and fairly presented the issues raised by the pleadings and the evidence. Not one of the excerpts from the charge embodied in the motion for a new trial is subject to the criticism that it is “not adjusted or applicable to the pleadings or the facts in the case,” or to any other criticism lodged against it. If fuller instructions were desired on any of the issues presented to the jury, a proper and legal written request therefor should have been made to the judge, as provided by section 6084 of the Civil Code (1910).

2. The verdict in this case (for $750) is not “so excessive as to justify the inference of gross mistake or undue bias.”

3. The questions of fact were passed upon by the jury; the trial judge has sanctioned their finding by refusing to grant a new trial; there is some evidence to support the verdict; no error of law was committed on the trial; and the court did not err in overruling the motion for a new trial. Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    15391.
    Equitable Life Assurance Society of The United States v. Culp.
    Decided October 7, 1924.
    Certiorari; from Eulton superior court — Judge Ellis. ■ January 28, 1924.

      Randolph, Parlcer & Forison, for plaintiff in error.

      G. & J. L. Westmoreland, Sidney Smith, S. L. Fplan, contra.
   Bloodwokth, J.

The judge of the municipal court of Atlanta did not err in excluding the evidence of which complaint is made in the petition for certiorari, nor did the judge of the superior court err in overruling .the certiorari.

Judgment affirmed.

Broyles, O. J., and; Lulce, J., concur.-


text:
    15396.
    McMEKIN v. PLANTERS WAREHOUSE COMPANY.
    Whether the relation of the warehouse company to the plaintiff, who was suing it in trover for cotton which he had stored with it and upon which it advanced money, and which he alleged was sold by it without his consent and without notice to him, was that merely of a warehouseman, or that of cotton factor and commission merchant, and, if it was the former, whether due notice of the intention to sell was given to him, or, if it was the latter, whether the sale was made in good faith and in the exercise of a sound discretion, in accordance with the usage of the locality of the company, were questions which the jury, under appropriate instructions from the court, should have been allowed to determine; and the judge erred in directing a verdict for the defendant.
    Decided October 7, 1924.
    Trover; from Willies superior court — Judge Shurley. February 7, 1924.
    An action in trover was brought to recover certain cotton. The evidence shows that the defendant was “engaged in storing and sell-. ing cotton in the fall of 1920, engaged in the warehouse business,” and that the plaintiff stored certain cotton in the defendant’s warehouse, and the defendant “advanced money on the cotton.” The plaintiff testified: “At the time the cotton was stored in the warehouse nothing was said about selling the cotton. . . I put the cotton in there in storage to be sold by them. . . There was a custom here at that time among the warehouses that they always notified a customer before selling the cotton, or he notified them when to sell it. I relied on that custom when I stored my cotton with the warehouse.” That this custom prevailed was shown by others. The plaintiff testified also that he gave the warehouse company no notice to sell, and that they gave him no notice that they expected to sell the cotton. The manager of the warehouse company testified that he sold the cotton in February, 1921, after giving notice to the plaintiff that the cotton would be sold unless additional margins were put up; that after the advances and storage were paid, there was left for the owner of. the cotton $55.08; that no commission was charged except that which ivas included in the storage; that the cotton ivas sold “in the usual way of selling cotton,” and that it brought a “full and fair value.” The bookkeeper for the warehouse company also swore that before the sale the plaintiff was notified that the cotton would be sold unless more margins were put up.

      The court directed a verdict for the defendant. The plaintiff’s motion for a new trial was overruled, and he excepted.

      Irvin & Fortson, for plaintiff.

      William, Wynne, Colley & Colley, C. F. Sutton, for defendant.
   Bloodworth, J.

(After stating, the foregoing facts.) On certain material issues the evidence was conflicting, and the disputed facts should have been submitted to the jury. The jury should have been allowed, under appropriate instructions, to determine :

(a) Whether defendant was merely a warehouseman, or a cotton factor and commission merchant.

(b) If the defendant was a “mere warehouseman,” whether or ' not' it gave the plaintiff the thirty days’ notice, required by § 3530 of the Civil Code (1910), of its intention to sell the cotton. It would hardly be contended that a sale without notice, and in the absence of a contract authorizing it, was warranted. Whigham v. Fountain, 132 Ga. 277 (1) (63 S. E. 1115); Planters Warehouse Co. v. Hardin, 30 Ga. App. 459 (1) (118 S. E. 441).

(c) If the relation between the parties was that of principal and factor, then the question should have been submitted to them whether the sale was made in good faith and in the exercise of a sound discretion as required by usage of the locality where the factor resides. Civil Code (1910), § 3369; Whigham v. Fountain, supra, 277 (3); Willingham v. Rushing, 105 Ga. 72 (1) (31 S. E. 130); Planters Warehouse Co. v. Hardin, supra, 459 (2); Heffner v. Gwynne-Treadwell Cotton Co., 160 Fed. 635 (5). In Gordon v. Cobb, 4 Ga. App. 51 (60 S. E. 821), Judge Powell said: “When the consignment is made generally, without any special orders as to the time and mode of sale, and the factor makes advances and incurs liabilities on the footing of such consignment, the legal presumption is, that the factor is to be clothed with the ordinary rights of factors, to sell, in the exercise of a sound discretion, at such time and in such manner as the usage of trade and his general duty require” (italics ours).

Under the foregoing decisions and the facts of this case, the judge erred in directing a verdict.

Judgment reversed.

Broyles, G. J., and Luke, J., concur.


text:
    15398.
    Burton v. King.
    Decided October 7, 1924.
    Complaint; from Cobb superior court — Judge Blair. January-12, 1924.

      II. B. Moss, for plaintiff in error.

      J. Glenn Giles, contra.
   Luke, J.

The bill of exceptions recites that “the jury found a verdict for an amount greater than that admitted to be due by the defendant,” but the nature and amount of the verdict does not otherwise appear from the record brought to this court. The evidence authorized such a verdict. , The charge was sufficiently full and fair, and is not subject to the criticisms urged against it. For no reason assigned was it erroneous to overrule the amended motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    15403.
    Black v. The State.
    Decided October 7, 1924.
    Conviction of manslaughter; from Talbot superior court — Judge Munro. January 26, 1924.
   Luke, J.

1. Where one tried for murder was convicted of manslaughter, proof of his bad feeling for the deceased 18 months prior to the homicide was not so irrelevant and immaterial as to be cause for a new trial.

2. Where declarations of the accused are offered in evidence as a part of the res gestae, but are not so nearly connected with the homicide in point of time as to be free from all suspicion of device or afterthought, it is not erroneous to exclude such evidence.

3. In the light of the entire charge, it was not erroneous to instruct the jury as follows: “The object of all legal investigations is the ascertainment of the truth; and when you have found the truth, or when you believe that you have found the truth, there you should base your verdict, regardless of consequences.”

4. Where on a trial for murder the accused is convicted of voluntary manslaughter, errors in the charge relating exclusively to the offense of murder or to involuntary manslaughter afford- no 'cause for a new trial.

5. Where the only defense set up is that of an accidental, and not of a justifiable, killing, it is not erroneous to fail to instruct the jury as to the law of justifiable homicide.

6. The foregoing principles dispose of the special assignments of error in the amended motion for a new trial. The verdict, being authorized by the evidence and approved by the trial judge, cannot be disturbed by this court.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

A. P. Persons, A. J. Perryman, J. A. Smith, J. PL. McQehee, H. A. Hall, for plaintiff in error.

W. B. Flournoy, solicitor-general, C. F. McLaughlin, Broolcs Culpepper, contra.


text:
    15407.
    Limerick v. Roberts.
    Decided October 7, 1924.
    Action for damages; from’city court of Savannah — Judge Freeman. January 9, 1924.
    The 'automobile of Roberts, when standing in a lane in the rear of a store which he had entered for the purpose of making a purchase, was struck and damaged by a truck owned by Limerick and driven by Friedman, an employee of Limerick. Roberts sued Limerick and obtained a verdict for damages. At the trial Friedman testified, that at the time the damage was inflicted, Roberts, who conducted a business in the city of Savannah under the name of Chero-Cola Bottling Company, was out of the city, and his (Friedman’s) duties were “to take charge of the office and the money as it came in, tend to the deposits, write the letters, and take charge of everything;” that the truck-drivers took their orders from him; that the principal of the Cuyler-street school owed the Chero-Cola Bottling Company for two cases of Chero-Cola, and he (Friedman) “had to take the matter up with him for collection,” and, with the intention of going to the school to collect the amount due, he directed the driver of the truck to meet him at his house at a certain time, with the truck, and the driver went there with the truck. He further testified: “I had to go up town a minute, and he came a f ew minutes ahead of time, and, . . instead of letting the truck wait there until I came back, I told him we would go up town and from there to the Cuyler-street school; so I went around on Congress street to see Frank Lasker, and from there I went out Jefferson street on my way to Cuyler-street school at that time. The reason I deviated from my course, I was without my coat and hat, . . and told the darkey I would go get it. So we run York [street] and Barnard and went in Barnard at a moderate rate of speed, and Mr. Roberts’ car was parked in the lane and left a narrow space to pass, and . . as I went into the lane I struck a projecting rock and it knocked the truck sideways into Mr. Roberts’ car. . . At this particular time I was in the business of the company; Avhen this accident happened I was tending to the company’s business. I was to run up to Congress street to see my friend Frank Lasker a few minutes, but the truck came a feAV minutes ahead of time, and, in order to save time for the company, I went with the truck. . . I went there to see him on my oavii business, individual business. . . I came on baelf, . . came on south by Barnard into the lane, where I hit Mr. Roberts’ car. The reason I Avas going to the house Avas because I had left my coat and hat, and was going by after it. I drove all the way from my house down to this place of my friend and back to my house Avithout my coat and hat, and I came back to the house, and the reason I stopped there was to get my coat and hat. I wanted my coat and hat to be properly attired to collect the account.” In regard to the collection he testified: “I had tended to such matters for the Chero-Cola Bottling Company before, and have gone on the truck of the Chero-Cola Bottling Company before. I would go on the instruction of Mr. Limerick, or use my oaaul discretion, either one.”
   Bloodworth, J.

1. Under the particular facts of this ease, and in the light of the entire charge, the court did not' err, for any reason assigned, in instructing the jury as follows:

(а) “Now there is no question in this case as to any negligence on the part of Mr. Roberts [the plaintiff]. Nobody contends or can contend ■ under the evidence in this case that he was negligent.”

(б) “I charge you further that if a servant or employee, while engaged in the business of his master, makes a slight deviation for ends of his own, the master remains liable when the’ act was so closely connected with the master’s affairs that, though the servant may derive some " benefit from it, it may nevertheless fairly be regarded as within the course of his employment.” See Ryne v. Liebers Farm Equipment Co., 107 Neb. 454, 460 (186 N. W. 358), and citations; Dowdell v. Beasley, 205 Ala. 130 (3) (87 So. 18); Fisick v. Lorber, 159 N. Y. Supp. 722 (2) (19 Misc. 574); Gibson v. Dupree, 26 Col. App. 324 (2) (144 Pac. 1133); Devine v. Ward Baking Co., 188 Ill. App. 590 (2); Jessen v. Peterson, 18 Cal. App. 349 (123 Pac. 219); Brimberry v. Dudfield Lumber Co., 183 Cal. 454 (2) (191 Pac. 894).

2. There is evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

Seabroolc & Kennedy, K. A. McWhorter, for plaintiff in error,

cited: 6 Ga. App. 470, 472; 3 Ga. App. 50; 139 Ga. 512; 19 Ga. App. 799; 20 Ga. App. 242; 59 N. E. 238; 50 N. E. 500; 144 Pac. 1123; 181 N. Y. Supp. 573; 157 N. W. 753; 210 S. W. 167; 159 N. W. 316; 71 Atl. 535; 183 Pac. 295; 9 Ga. App. 327.

Gonnerat & Hunter, contra,

cited: 63 Conn. 155 (28 Atl. 29, 27 L. R. A. 161); Berry on Automobiles (3d ed.), § 1088; 205 Ala. 130 (87 So. 18); 26 Colo. App. 324 (144 Pac. 1133); 159 N. Y. Supp. 722; 232 Mass. 576 (122 N. E. 743); 107 Neb. 454 (186 N. W. 358); 260 Pa. 466 (103 Atl. 882); 91 Wash. 637 (158 Pac. 529); 244 Pa. 172 (90 Atl. 528); 207 Mo. App. 137 (231 S. W. 277); Civil Code, § 4413, 6 Ga. App. 470 (distinguished).


text:
    15410.
    ALTMAN v. THE STATE.
    1. Errors in tlie charge of the court favorable to the accused afford him no cause for a new trial.
    2. Refusal of a request to charge not adjusted to the evidence was not error.
    3. The evidence authorized the verdict, and no reversible error appears.
    Decided October 7, 1924.
    Accusation of assault and battery; from city court of Baxley— Judge Speer. January 26, 1924.

      V. H. Padgett, for plaintiff in error.
   Luke, J.

Altman was convicted of assault and battery, alleged to have been committed upon one Yarnadore. There was evidence tending to show that unknown persons threw rocks or pieces of wood against Yarnadore’s dwelling house, while occupied by him, his family, and a guest, at night, and that he thereupon seized his gun and shot at persons seen running away, thereby wounding Altman’s son. A few minutes later Altman entered the same habitation, abruptly asking why the family was sitting up so late, who had shot his son, and what Yarnadore meant by holding a gun in his hand, and presently drew a pistol from his own pocket. Upon Yarnadore’s statement that he had shot only at those who had stoned his house and ran, not knowing at whom he was shooting, Altman struck him in the face and otherwise assaulted and beat him in his own house. There was some conflict in the testimony as to whether Yarnadore still held the gun in his hand when Altman entered, or whether he started for it immediately upon seeing Altman enter and hearing him ask the questions above indicated. In his statement to the jury Altman contended that his son came home wounded and claiming to have been shot by Yarnadore, and not to know why he was shot; that he (Altman) thereupon went to Yarnadore’s house for the sole purpose of learning why his son had been shot; that when he entered and began questioning the family, Yarnadore, without a word, started to draw his gun from its rack on the wall; and that, believing that Yarnadore’s purpose was to shoot him, he struck Yarnadore and knocked him away from his gun.

The defendant requested the court to charge: “If you find from the evidence in this case that Andrew Yarnadore, the person alleged to have been assaulted, was making an effort to arm himself with a deadly weapon, under circumstances that might excite the fears of-a reasonably courageous man, and that the defendant struck or slapped the said Andrew Yarnadore to prevent him from arming himself under such circumstances, then the defendant would not be guilty.” The court refused,to give the requested charge, but did charge: “On a peaceful mission the defendant would have the right to slap the prosecutor, or alleged victim, to prevent him from arming himself with a deadly weapon. A man has a right to use his gun in defense of his habitation.” In the motion for a new trial error is assigned upon both parts of the charge given and on -the refusal to give the requested charge. Exception is taken to the judgment overruling the motion. The requested charge was not adjusted to the evidence, in that it totally ignored the hypothesis that Altman may have manifestly intended and endeavored, in a riotous and tumultuous manner, to enter Yarnadore’s habitation for the purpose of assaulting him or of offering personal violence to some person therein. The charge given, while very meager, is adjusted to the evidence, and is not subject to any of the criticisms urged against it. In so far as erroneous, it is more favorable to the accused than he had a right to demand, and such errors can in no event afford him cause for a new trial. . .

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.


text:
    15415.
    AMERICAN MUTUAL LIABILITY INSURANCE CO. v. ADAMS.
    The findings of the industrial commission on questions of fact, if supported by any evidence, are conclusive.
    The judge of the superior court did not err -in sustaining the award of the industrial commission, or in making that award the judgment of the superior court.
    Decided October 7, 1924.
    Appeal; from Monroe superior court — Judge Persons. January-24, 1924.
    On May 15, 1923, John Q. Adams was driving a truck loaded with bread which he was to deliver at Forsyth for his employer, American Bakeries Company, of Macon. After reaching Monroe county the truck turned over and Adams was killed. He left a wife and two minor children. Application for compensation was made to the industrial commission of Georgia. The insurance carrier was the American Mutual Liability Insurance Company. Upon a hearing of the case before Commissioner Kilburn an award -was entered against the insurance company “for $12.75 a week, beginning May 22, 1923, and continuing for three hundred weeks.” The insurance company made application for a review by the full board of this finding, and upon a review the award was affirmed. On appeal the superior court of Monroe county passed the following order: “The foregoing appeal having come on to be heard before me this day, upon hearing argument therein and considering the entire record, the finding and award of the industrial commission of Georgia is hereby sustained and affirmed, and the judgment of the commission is hereby made the judgment of this court.” To this order the insurance company excepted.
    . Frank Garter, for plaintiff in error.

      Hunter & Daly, contra.
   Bloodworth, J.

(After stating the foregoing facts.) The insurance company planted its defense upon the contention that the accident which resulted in the death of Mr. Adams was caused solely by his wilful misconduct, in that at the time of the accident he was driving the truck in excess of thirty miles per hour, the maximirm allowed by statute, a violation of which statute is penal. Ga. L. 1915, Ex. Sess., p. 112, sec. 10, p. 118, sec. 22; Park’s Ann. Code Süpp. 1922, §•§ 828 (dd), 828 (qq). In the brief of plaintiff in error it is urged that “it is the contention of plaintiff in error that there was not sufficient competent evidence to warrant the finding of the industrial commission. The only evidence showing that the injured party was not exceeding the speed limit was the mere opinion of his son, who- was with his father but had no speedometer reading, and who merely testified that the car was running about 25 or 30 miles an hour.” Here is an admission on the part of counsel for plaintiff in error that “there is some evidence” on this point. The workman’s compensation act (Ga. L. 1920, p. 199, sec. 59) provides that “the findings of fact made by the commission within its power shall, in the absence of fraud, be conclusive,” but it provides also that any order or decree of the commission shall be set aside if “the facts found by the industrial commission do not support'the order or decree,” or if “there is not sufficient competent evidence in the record to warrant the industrial commission in making the order or decree complained of.” It is well established by numerous decisions of this court and the Supreme Court that the verdict of a jury supported by some evidence and approved by the trial judge will not be interfered with by the appellate courts. Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited. It .is also true that “when a question of fact is, -by agreement, referred to the court, and there is evidence on both sides of the question, the decision, be it which way it may, will not be reversed.” Sullivan v. Richardson, 25 Ga. 154. See also Dahlonega Gold Mining Co. v. Purdy, 65 Ga. 498 (1); Cunningham v. Schley, 41 Ga. 426; Parish v. Kelsey, 13 Ga. 223. An appeal to the superior court from a finding of the industrial commission is analogous to an appeal from -the finding of a jury or of a judge where a case is, by agreement, submitted to him to pass upon the law and the facts, and will not be set aside if there is any “competent evidence” to support it. In Hollenbach Co. v. Hollenbach, 181 Ky. 262 (204 S. W. 152), the 3d headnote is as follows: “The Board of Compensation is required to make a finding of fact in its award, and this finding of fact, if supported by credible evidence, will not be disturbed by a court in review. The same rule will be applied to the finding of fact of the Board of Compensation as to a verdict of a properly instructed jury, and unless the finding be clearly, flagrantly, and palpably against the weight of the evideuce, it will not be disturbed by a court.” In Twin Peaks Canning Co. v. Industrial Commission of Utah, 57 Utah, 589 (196 Pac. 853), it was held: “On proceedings to review an award of the industrial commission under the workmen’s compensation act, the court will examine the evidence only to ascertain whether there is any substantial evidence in support of the findings, and whether it has acted without or in excess of its jurisdiction.” This same proposition has been announced in the opinions of appellate courts in other States. Indeed, this question has been settled by this court and by the Supreme Court. In New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 788), Judge Bell said (p. 686) : “The findings of the commission on questions of fact, if supported by any evidence, are conclusive.” (Italics ours.) See Travelers Ins. Co. v. Bacon, 30 Ga. App. 728 (1) (119 S. E. 458). “Any evidence,” as used above by Judge Bell, means, of course, any “competent evidence.” See London Guarantee & Accident Co. v. Shockley, 31 Ga. App. 762 (1) (122 S. E. 99); Ga. Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 81),

In the ease under consideration the chief witness for the insurance company was the fireman of a train which was traveling in the same direction in which the truck was going, and the chief witness for the plaintiff was the son of the deceased, who was on the truck with his father. There is no question as to the evidence of each of these witnesses being “competent evidence.” Their evidence as to the speed at which the truck was traveling is in sharp conflict. The son swore, as stated above, that it was traveling from 25 to 30 miles an hour, and the evidence of the fireman was that it was going 45 to 50 miles an hour. Other witnesses also testified that the truck was running at a rate exceeding 30 miles per hour. The commissioners believed the son, as they had a right to do, and this settles the question on this point. Under the foregoing rulings and the facts of the case the judge of the superior court committed no error in sustaining the award of the industrial commission and in making it the judgment of the superior court.

Judgment affirmed.

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


text:
    15422.
    Breedlove, executor, et al. v. Wooley.
    Decided October 7, 1924.
    Lien foreclosure; from Walton superior court — Judge Fortson. January 16, 1924.

      Orrin Roberts, for plaintiffs in error.

      R. L. & H. C. Cox, contra.
   Luke, J.

The evidence authorized the verdict, which has the approval of the trial judge. The one special assignment of error upon the court’s failure to charge is without merit. Eor no reason pointed ouf; did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    15432.
    Olivet Brothers Incorporated v. Adams Farms Incorporated.
    Decided October 7, 1924.
    Rehearing denied November 12, 1924.
    Action for breach of contract; from Bibb superior court — Judge Malcolm D. Jones. February 2, 1924.
    Martin, Martin & Baldwin, C. M. Williams, for plaintiff in error.

      John R. L. Smith, Grady C. Harris, J. LeConte Smith, contra.
   Bloodworth, J.

The instructions given the jury in this case cover fully the issues made, and no excerpt therefrom, of which complaint is made in the motion for a new trial, when considered in connection with the other instructions given and all the facts of the case, shows reversible error; the questions of fact were passed upon by the jury, and this court cannot say that their finding is not supported by evidence.

Judgment affirmed.

Broyles, G. J.,-and Luke, J., concur.


text:
    15506.
    Williams v. Garrett.
   Luke, J.

1. Where one convicted of a misdemeanor and sentenced to pay a specified fine or serve a specified time in the gang procured another person to sign with him a promissory note in satisfaction thereof, and to execute a deed to secure the payment of the note, and the note and the deed were accepted by the solicitor-general as the equivalent of cash, the consideration was not illegal, and in a suit thereon a plea to that effect was properly stricken on demurrer. Blain v. Hitch, 70 Ga. 275.

2. In a suit on a promissory note, a plea alleging fraudulent conduct on the part of a person other than the payee and not in privity with him constitutes no issuable defense, and is properly stricken on demurrer. Roth v. Donnelly Grocery Co., 8 Ga. App. 851 (2) (70 S. E. 140).

Decided October 7, 1924.

Complaint; from city court of Macon — Judge Gunn. February 5, 1924.

8. M. Mathews, for plaintiff in error.

C. H. Garrett, John J. McCreary, c.ontra.

3. The recoi'd discloses no reversible error.

Judgment affirmed.

Broyles, C. J., and Bloodioorth, J., concur.


text:
    15568.
    Hammond v. The State.
    Decided October 7, 1924.
    Conviction of embezzlement; from Heard superior court — Judge Eoop. March 19, 1924.

      Smith & Millican, Terrell & Terrell, B. B. Whitaker, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, L. B. Wyatt, contra.
   Luke, J.

Upon the trial of a tax-collector for the offense of embezzlement, persons related within the ninth degree to a surety on his official bond are disqualified to serve as jurors, where an execution against him and his sureties has been issued by the county commissioners, and where the surety in question has paid his pro-rata part of the execution. See, in this connection, Temples v. Central of Ga. Ry. Co., 15 Ga. App. 115 (82 S. E. 777), and the numerous authorities there cited.

Under this ruling the denial by the court of the defendant’s right to challenge, for cause, three of the jurors put upon him, was error requiring the grant of a new trial. The other grounds of the motion for a new trial are not passed upon.

Judgment reversed.

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


text:
    15579.
    Citizens Bank of Gainesville v. Coker.
    Decided October 7, 1924.
    Complaint; from Floyd superior court — Judge Wright. April 4, 1924.
   Luke, J.

The first, grant of a motion for a now trial is complained of in this ease, and the case is controlled by Rowe Brothers Motor Express Co. v. Twiggs County, 152 Ga. 548 (110 S. E. 307); s. c. 28 Ga. App. 211 (110 S. E. 925).

Judgment affirmed.

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

Carl N. Davie, Charles 8. Reid, Willingham, Wright & Covingion, for plaintiff.

Harris & Harris, J. 0. Adams, for defendant.


author: Per Curiam. Luke, J.,

text:
    15582.
    BAXLEY v. DYAL.
    There being some evidence in support of the defendant’s plea that the note sued on was paid to the original payee and was not purchased by the plaintiff before maturity, the court erred in directing a verdict for the plaintiff.
    Decided October 7, 1924.
    Complaint; from city court of Baxley — Judge Speer. March 8, 1924.

      Wade H. Watson, for plaintiff in error.

      V. E. Padgett, contra.
   Per Curiam.

Dyal sued Baxley upon a promissory note which he alleged he had purchased from another. Baxley admitted in his plea that he had executed the note, but denied that it had been purchased before maturity by Dyal, and pleaded that he had paid it to the original payee before its purchase by Dyal. There being some evidence supporting this plea, the question should have been submitted to a jury, and the court erred in directing a verdict for the plaintiff.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.

Luke, J.,

dissenting. In my opinion the defendant failed by his proof to carry the burden of his plea that the note had not been purchased before maturity, and the court properly overruled the motion for a new trial.


text:
    15585.
    Kent et al. v. Frost.
    Decided October 7, 1924.
   Luke, J.

1. In a garnishment proceeding, where indebtedness is admitted to the defendant, a claimant cannot legally obtain judgment in his favor without traversing the answer of the garnishee. Booth v. Brooke, 6 Ga. App. 299 (64 S. E. 1103). The court properly directed a verdict for the plaintiff in fl. fa.

2. Neither upon the ground of newly discovered evidence nor for any reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

Claim; from Treutlen superior court — J-udge Graham. April 7, 1924.

W. B. Kent, for plaintiffs in error.

B. B. Jackson, contra.


author: Bioodworth, J.

text:
    15586.
    Reynolds Banking Co. v. McGuffin, sheriff, for use, etc.
    Decided October 7, 1924.
    Action on bond; from Taylor superior court — Judge Munro. July 14, 1923.

      O. B. Marshall, Jere M. Moore, for plaintiff in error.

      Homer Beelahd, contra.
   Bioodworth, J.

This was a suit on a forthcoming bond for the value of the mule named therein; the petition alleging a breach of the bond. A verdict was directed for the plaintiff. Under the rulings in Johnson v. Stevens, 19 Ga. App. 192 (91 S. E. 220), and cases there cited, Westberry v. Hand, 19 Ga. App. 529 (2 b) (91 S. E. 930), and Georgia Northern Ry. Co. v. Battle, 22 Ga. App. 665, 666 (97 S. E. 94), the court erred in not submitting to the jury the question as to the value of the mule for which the bond was given. This error requires the grant of a new trial. Judgment reversed.

Broyles, G. J., and Luke, J., concur.


text:
    15592.
    Marbut v. Southern Railway Co.
    Decided October 7, 1924.
    Action for breach of contract; from Fulton superior court— Judge Humphries. March 15, 1924. See 22 Ga. App. 330.
    The petition of J. D. Marbut against the Southern Railway Company, filed July 22, 1918, alleged: (Paragraph 2) “The defendant is indebted to petitioner in the sum of $2204.23 on a breach of its contract with petitioner. The petitioner, on and before the 30th of September, 1914, had been employed by the defendant as a car inspector. Said contract was in writing, the terms of which were as follows: Tf a carman (meaning a car inspector) is unjustly discharged, he shall be reinstated and shall be paid for time lost.5 ” (Paragraph 3) “On the 30th day of September, 1914, the defendant unjustly discharged petitioner, and has held him out of its service ever since, and still holds him out of its service, and, by reason of this unjustly being held out of said service, he has lost 657 days, or 45 months and 22 days; and said time was worth to petitioner the sum here sued for.” (Paragraph 4) “Petitioner, though unjustly discharged, has not been reinstated, nor has the defendant paid him for his said lost time, yet he has asked to be reinstated and has demanded his lost time of the defendant. By reason of the facts here alleged the defendant has breached its contract with petitioner; and for this he brings this his suit.”
   Luke, J.

The court did not err in sustaining the demurrer and dismissing the suit.

Judgment affirmed.

Broyles, G. J., and Bioodworth, J., concur.

The defendant demurred, on the grounds: that no cause of action was set out; that the alleged contract was not set out; and that paragraph 3, in charging that the plaintiff was unjustly discharged and that the defendant unjustly held him out of its service, stated a mere conclusion, without facts on which to base the conclusion. The court passed an order “sustaining the general demurrer and conditionally dismissing the cause of action, unless the plaintiff so amended his petition within 10 days as to meet the objections raised by the general-demurrer.” Within the time allowed, the plaintiff filed an amendment, which was allowed subject to demurrer. The amendment was as follows: Paragraph 2 was amended by adding the following rules: (a) “Rule 19. When a car-man has a grievance he shall make a personal effort to adjust same with the foreman, general foreman and master mechanic. If not settled in this manner satisfactorily, he will then place it in the hands of a committee of employees, who shall try to settle it with the master mechanic. Failing to do this, the committee shall place such grievance in the 'hands of the district committee, composed of employees, for adjustment with the superintendent of motive power, and general superintendent of motive power and equipment. If an adjustment is then not reached, such grievance shall be turned over to the president of the federation and executive board, if necessary, for final adjustment.” (6) “Rule 20. If a car-man is discharged, he "thinks, unjustly, he shall have the right to appeal to the master mechanic within three days after his discharge. If then not satisfactorily adjusted, the grievance should be taken up as per Rule 19. If a carman is found to have been unjustly discharged, he shall be reinstated and shall be paid for time lost.” It was alleged: (c) Bach requirement of rules 19 and 20 has been complied with by petitioner, and all the petitions, writings, and findings, and the reports of the officers of the defendant are in the defendant’s possession, and it lies within the power of the defendant to plead and allege the contents thereof for and on account of these facts, (d) The complaint brought against petitioner was that on May 5, 1914, while inspecting a cut of cars, five in number, he overlooked and improperly inspected car number L. & N. 101702. Petitioner never inspected that cut of cars, and had no opportunity of inspecting them in his capacity as ear inspector. Bules 19 and 20 constitute the entire contractual relations between the plaintiff and the defendant so far as their contract is pertinent to the subject-matter herein involved. Paragraph 3 was amended by alleging that the plaintiff was not responsible for the faulty inspection of the car mentioned, that it was inspected by another inspector, and that the defendant, with these facts before it as provided in rules 19 and 20, capriciously and without evidence against the plaintiff, discharged him, and continued to hold him out of its service. He alleged that before his discharge he was for eighteen years a car inspector for the defendant, and that at the time of his discharge he was earning $3.35-1/2 per day seven days in the week.

To the petition as amended the defendant demurred, on the grounds: that no cause of action is set out; that the contract referred to was “between other and different parties and the Southern Bailway Company, or an order or union of which the plaintiff was a member, and the contract is insufficiently set forth;” that subparagraph c of paragraph 2 states a conclusion of the pleader and does not relieve the plaintiff from setting out the contract referred to; that the allegation of subparagraph d of paragraph 2, that “rules 19 and 20 constitute the entire contractual relation between the plaintiff and the defendant,” is a conclusion of the pleader; and that the contract set forth is insufficient to constitute a contract between the plaintiff and the defendant.'

The judgment on the demurrer was as follows: “It'does not appear that the rules referred to constituted such contract between the parties as to authorize this action based thereon. But if it should be conceded that they constituted a contract between the parties, (a) the provisions of the rules are too general to bind the parties for any definite length of time; and (&) a discharged employee would not be entitled to recover for lost time thereunder before reinstatement. Wherefore the demurrer is sustained upon each and all of its grounds, and plaintiff’s petition is dismissed,” etc.

Lawton Nalley, Charles 6r. Reynolds, for plaintiff.


text:
    15601.
    Southern Railway Co. v. Easley Cotton Mills.
    Decided October 7, 1924.
    Rehearing denied November 12, 1924.
    Action for damages; from Fulton superior court — -Judge E. D. Thomas. March 24, 1924.

      McDaniel & Neely, Kendrick L. Scott, for plaintiff in error.

      Watkins & Aslill, contra.
   Luke, J.

-This ease falls within the rule announced in Rowe Brothers Motor Express Co. v. Twiggs County, 152 Ga. 548 (110 S. E. 303), 28 Ga. App. 211 (110 S. E. 925), and cases cited. For this reason the first grant of a new trial will not be disturbed by this court.

Judgment affirmed.

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


text:
    15603.
    Medlock v. Nichols.
    Decided October 7, 1924.
    Complaint; from city court of Decatur — Judge Daley. April 9, 1924.

      Carl T. Hudgins, for plaintiff in error.

      L. J. Steele, contra.
   Bloodworth, J.

There is nothing in any of the grounds of the motion for a new trial in this case that requires a reversal of the judgment, and no error was committed when the judge overruled the motion for a new trial. Judgment affirmed.

Broyles, C. J.,- and Ltohe, J., concur.


text:
    15605.
    McLendon et al. v. Towns.
    Decided October 7, 1924.
   Luke, J.

The certiorari was properly overruled.

Judgment affirmed.

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

Certiorari; from Wheeler superior court — Judge Graham. March 24, 1924.

W. B. Kent, for plaintiffs in error.

H. W. Nalley, contra.


text:
    15608.
    Hamilton v. Century Investment Co.
    Decided October 7, 1924.
    Motion to set aside judgment; from city court of Atlanta — Judge Reid. March 29, 1924.

      Bay & Bay, for plaintiff.

      Bobert H. Jones Jr., for defendant.
   Luke, J.

The motion to set aside and vacate the judgment was without merit, and the court properly denied the motion.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    15625.
    Reed v. The State.
    Decided October 7, 1924.
    Conviction of cheating and swindling; from city.court of Savannah — Judge Rourke. March 29, 1924.

      Bobert L. Golding, J. B. Harrison, for plaintiff in error.

      Walter 0. Hartridge, solicitor-general, contra.
   Luke, J.

The evidence authorized the verdict; and in the absence of an appropriate written request for specific instructions, the charge as given was sufficiently full and fair. “Where the presiding judge, by his general charge, presents to the jury the law governing the substantial and controlling issues in a ease, the mere failure or omission to charge upon minor points, to which his attention is not called at the time, is not ground for a new trial.” Thomas v. State, 95 Ga. 484 (4) (22 S. E. 485).

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    15650.
    Spooner v. The State.
   Luke, J.

The grounds of the motion for a new trial which have the approval of the trial judge show no reversible error. The evidence amply authorized the conviction; and for no reason assigned did the court err in overruling the motion for a new trial.

Decided October 7, 1924.

Conviction of riot; from city court of Miller county — Judge Geer. April 19, 1934.

H. G. Rawls, House & Goree, for plaintiff in error.

P. D. Rich, solicitor, Jesse A. Dralce, P. Z. Geer, contra.

Judgment affirmed,.

Broyles, O. J., and Bloodworlh, J., concur.


author: Ltjke, J.

text:
    15667.
    Hagan v. The State.
    Decided October 7, 1924.
    Conviction of assault with intent to murder; from Pike superior court — Judge Searcy. May 3, 1934.

      W. T. Allen, E. F. Dupree, W. 0. Cooper Jr., for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Ltjke, J.

The evidence was conflicting, but the jury, as shown by the verdict, accepted the testimony of the prosecutor, and the verdict has the approval of the trial judge. The several assignments of error upon excerpts from the charge of the court, and the special assignments of error because of the court’s failure to charge as complained of, in the light of the charge when read in its entirety, are without merit. The defendant has had a legal trial, and for no reason pointed out in the record was it error to.overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


text:
    15668.
    Denny & Co. v. Gunn.
    Decided October 7, 1924.
    Complaint; from city court of Houston county — Judge Eiley. May 10, 1934.

      Brown & Brown, for plaintiffs in error.

      Duncan & Nunn, contra.
   Bloodworth, J.

1. As far as they present any questions in such manner as requires a consideration by this court, there is no merit in any of the special grounds of the motion for a new trial.

2. In the brief of the plaintiff in error the general grounds of the motion for a new trial are not insisted upon; and the court committed no error when it overruled the motion.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    15670.
    DECATUR COUNTY et al. v. ROBERTS.
    The contract of employment under which tlie plaintiff sought out,'1 for the county, unreturned property subject to taxes, with the result that taxes were collected thereon, was not illegal for any reason assigned.
    The county cannot, in good conscience or in law, retain the fruits of such employment and deny its authority to pay for the services rendered.
    Decided October 7, 1924.
    Complaint; from Decatur superior court — Judge Eve presiding. May 12, 1924.
    Certiorari was granted by tlie Supreme Court.

      H. G. Bell, for plaintiffs in error. T. 8. Hawes, contra.
   Luke, J.

1. Decatur County, by and through its board of commissioners of roads and revenues, employed Roberts to seek out, at his own expense, unreturned property subject to taxes, and for all taxes received by the county from such hidden and unreturned property he was to receive for his services a sum equal to twenty-five per cent, of the amount collected and paid by him to the board as the property of Decatur County. The contract of employment was duly entered on the minutes of the board. Under the terms of employment he went to work and succeeded in collecting money for the county on property that had not been returned for taxes for years prior to the year of employment, and the money collected, which was due the county, but unknown to the county, and only known by reason of the employment, labor and services of Roberts, was paid to the board of commissioners of roads and revenues; and, in violation of the terms of employment, with yet the fruits of Roberts’ service in its hand, Decatur County refused to pay him for his services. Roberts sued, and, because of the judgment he obtained, this case is here for review.

I. The county demurred to the suit, upon the ground that the employment was in violation of law, especially because of the act of 1913 (Ga. L. 1913, p. 126; Park’s Code, § 1116(j)). The court properly overruled the demurrer. Under the statute referred to, the “board of county tax-assessors” may employ an agent to seek out unreturned property and pay a commission for such service. This provision of the law does not prohibit the board of commissioners of roads and revenues of Decatur County from discovering for Decatur County other and additional property subject to tax which has been discovered by the “board of county tax-assessors,” or its agent, if any such agent be employed.

2. Where money has been collected and paid to the county by reason of and only because of such employment, the county cannot, in good conscience or in law, retain the fruits of the employment and deny its authority to pay fox the services rendered.

3. The employment of Roberts was not illegal for any reason pointed out. See act creating board of commissioners of roads and revenues of Decatur County (Ga. L. 1904, p. 252); Cloud v. County of Taliaferro, 138 Ga. 214 (74 S. E. 1074); Wright v. Floyd County, 1 Ga. App. 582 (58 S. E. 72). For no reason pointed out did the trial judge, to whom the case was submitted by agreement, err in rendering judgment in favor of the plaintiff.

Judgment affirmed.

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