text:
    15207.
    FEW v. POU.
    1. The motion to dismiss the bill of exceptions is denied for the reason stated in the first division of the opinion.
    2. “ Garnishment proceedings, being purely statutory, cannot be extended to cases not enumerated in the statute, and courts have no right to enlarge the remedy or hold under it property not made subject to the process.” The plaintiff docs not occupy any better position as against the garnishee than does the principal defendant.
    3. The transferee of a bond for title, where the assignment is made merely as collateral to secure a debt, is not thereby entitled to recover the rents and profits of the premises.
    4. But where in a garnishment proceeding it appears that, in addition to such collateral assignment of the bond, the assignee, in order to further secure his claim against the obligee, was subsequently given a valid oral assignment of the right of possession of the premises, together with the rents and profits incident thereto, he, as the holder of such equitable assignment of the rents, is entitled to claim such as accrue prior to the legal termination by the vendor of the assignor’s right of possession.
    Decided May 17, 1924.
    Adhered to on rehearing, September 19, 1924.
    Certiorari; from Morgan superior court — Judge Park. October 26, 1923.

      Williford, & Dulce, for plaintiff in error.

      E. E. George, contra.
   Jenkins, P. J.

On January 5, 1920, Mrs. Pou sold a house and lot to Smith, taking from 'him three promissory notes for $2,000 each, respectively maturing January 1, 1921, 1922, and 1923, and giving him a bond for title, under which he went into possession of the property. On December 1, 1920, Smith executed to Few an assignment of “the within bond for title, with all my rights, title, and interest therein and thereto,” with the provision that “this transfer and assignment is made as collateral security to a certain note, dated December 1, 1920, due January 1, 1922, bearing 8 per cent, interest per annum, and being for $3,000 principal.” Subsequently to this assignment Mrs. Pou obtained general judgments on the purchase-money notes as they respectively became due, these judgments setting up a special lien upon the bargained property. Mrs. Pou then initiated a summons of garnishment in the city court of Madison, directed to Walker, a tenant who was occupying the premises. It appears, under the undisputed evidence, that Smith, the vendee under the bond for title, some time after the assignment of the bond for title as collateral security to Few, and before the summons of garnishment upon the occupant of the premises — but • at what time the record does not more definitely show — had told Few to take charge of the property, rent it, collect the rents, and apply them to the previously executed note, already referred to as owing by Smith to Few, and to secure which Smith’s bond for title had, as stated, been assigned to Few as collateral. Few, as the oral assignee of the right of possession to the property and its rents, proceeded in October, 1922, to take possession of the premises by renting the same to Walker, the garnishee. It is the rents accruing under the tenancy of Walker by virtue of his contract made with Few which constitute the subject-matter of the present controversy under the garnishment proceeding. Walker, the garnishee, occupant of the premises, in his answer as amended, undertook to construe’ his present and future accruing liability as subsisting in favor of Few instead of Smith; but, assuming the attitude of a stakeholder, he paid into court the money due by him for rents, and asked further direction of the court. Few, without entering a formal claim or filing bond under the Civil Code, § 5282, filed a petition in the nature of a claim to the fund and praying to be made a party, on which the court passed an order making him a party, and he participated in the trial without any objection or exception by the plaintifli in fi. fa. to such order or such participation. The issues as tried in the city court appear to have been only those made by the plaintiff’s traverses to the garnishee’s answer as amended. In her original traverse the plaintiff alleged that “the funds coming into said garnishee’s hands” were “rental for said premises; that plaintiff’s said liens are superior to all other liens except liens for taxes; that her said liens now amount to more than $5,500; that when said liouse and lot is sold and the liens for taxes discharged, there will not remain enough to pay half her said liens; that she has no other security; and that the said defendant, W. B. A. Smith, is insolvent.” It was shown without dispute that the plaintiff held general and special judgments and executions, amounting to $5,-994; that the property was her only security; that superior tax liens amounted to about $450; that a public sale would not realize more than $4,000; that in October, 1922, and subsequently, Smith, the defendant vendee, was insolvent; and that the garnishee tenant had rented the property from Few, the claimant, and not from Smith. The judge of the city court, who, by agreement, tried the case without a jury, entered a judgment in favor of the garnishee and against the plaintiff on her traverses, holding that her liens did “not attach to the fund paid into court by the garnishee, the same having, previous to service of the summons of garnishment, been assigned by W. E. A. Smith on an unquestioned debt, this debt being secured by a transfer and delivery of the bond for title.” The plaintiff, in her petition for certiorari, excepted both to this judgment and to the admission of oral testimony offered in behalf of the garnishee and claimant with reference 'to the parol assignment of possession and rents to the claimant, upon the ground that “realty cannot be turned over by parol,” and that such attempted transfer would not be binding upon the plaintiff. The superior-court judge, applying equitable principles in distributing the fund, and citing as authority the cases of Wilkins v. Gibson, 113 Ga. 31 (8), 56, 57 (38 S. E. 374, 84 Am. St. R. 204), Thrash v. Harman, 21 Ga. App. 98 (94 S. E. 54), and Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034), sustained the certiorari and directed that the fund paid into court be awarded to the plaintiff and credited on her purchase-money judgments; this upon the theory that the claimant stood in the shoes of the defendant vendee of the property by virtue only of the transfer of the bond for title; that by the transfer of the bond for title the defendant could not convey to his assignee any better - claim than he himself owned under it, and that, applying equitable principles to the question involved, as the defendant vendee was insolvent and the property was worth less than the amount due to the plaintiff vendor, the plaintiff was “equitably entitled to the funds in court realized from the rents from said house and lot as against the claim.”

Where a garnishee paid money into court and asked to be discharged, although answering that he was not indebted to the defendant but was indebted to another, and where such other person filed a petition, asking to be made a party to the proceeding and in effect asserting a claim to the money so paid by the garnishee, and an order making such person a party was entered and he participated in the proceedings, without any objection or exceptions being taken by the plaintiff, such third person will be treated as a claimant, although he filed no bond to dissolve the garnishment under section 5282 of the Civil Code (1910). The statutes with reference to claims in garnishments, while providing that the claimant “may” dissolve the garnishment “by filing . . a bond . . conditioned to pay to the plaintiff the sum that may be found due to said defendant upon the trial of any issue that may be formed upon the answer of the garnishee, or that may be admitted to be due in said answer, if untraversed,” and that upon such bond being given, “the garnishee shall pay over or deliver any money or property to the claimant upon the dissolution of the garnishment in manner aforesaid” (Civil Code, § 5288), do not make the filing of such a bond vital to the assertion of the claimant’s rights where the claimant seeks no dissolution of the garnishment or possession of the property. See Rutherford v. Fullerton, 89 Ga. 353 (2) (15 S. E. 471); Drought v. Poage, 3 Ga. App. 178 (3) (59 S. E. 728). Especially would this be true where no objection or exception was taken by the plaintiff in garnishment to the order making the claimant a party and to his subsequent participation in the proceedings. It is a different rule which requires that, when an ordinary claim is filed to property levied upon, the claimant must file a bond or pauper affidavit in order to have the claim adjudicated. Civil Code (1910), §§ 5158, 5164; Hand v. Hall Mdse. Co., 91 Ga. 130 (2-4) (16 S. E. 644). Thus, where such a garnishment proceeding was tried in the city court upon the issues raised by the traverses to the garnishee’s answer as amended, and was determined in favor of the claimant and against the plaintiff in fi. fa., who proceeded therefrom by certiorari, and where the superior-court judge entered a judgment finding in favor of the traverse and awarding to the plaintiff in fi. fa. the fund paid into court by the garnishee, the garnishee, who by paying the funds into court and asking its direction had assumed the legal status of a stakeholder, although a nominal party, was not a necessary plaintiff in error in a bill of exceptions taken by the claimant from such judgment; and consequently the motion to dismiss the bill of exceptions must be denied.

“While a judgment in this State, in a general sense, binds all the property, both real and personal, of the person against whom it is rendered, the lien of such judgment, in the special sense which prevents the alienation of the property of- the debtor after its rendition, attaches only to such property of the debtor as is capable of seizure and sale under execution based upon such judgment. Choses in action are not subject to seizure and sale under executions based upon ordinary judgments, and can only be reached by the judgment creditor through a garnishment, or some other collateral proceeding; and inasmuch as such garnishment or collateral proceeding is necessary to fix the lien of the judgment so as to make it effective, an assignment of the chose in action by the debtor before the institution of such collateral proceeding passes to the assignee the property of the,, debtor in the chose in action assigned, freed from the lien of a general judgment previously rendered against the assignor.” Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619 (2), 625 (28 S. E. 393).

(a) Garnishment proceedings in this State, being statutory, are not controlled by equitable rules in the distribution of the fund, such as obtain in direct equity proceedings or in money rules, where equitable principles have been held applicable. Phillips v. Wesson, 16 Ga. 137 (3), 140; Conyers v. Bowen, 31 Ga. 385; Bowling v. Amis, 58 Ga. 400 (1), 402. Especially is it true that equitable rules cannot be applied to garnishments tried in city courts or other courts with only common-law jurisdiction, and “without jurisdiction to grant affirmative equitable relief such as the plaintiff would require” in order to recover. Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 626 (1), 631 (56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. R. 356, 9 Ann. Cas. 437); Woodruff v. McDonald Furniture Co., 96 Ga. 86, 88 (23 S. E. 195). The rule is that “garnishment proceedings, being purely statutory, cannot be extended to cases not enumerated in the statute, and courts have no right to enlarge the remedy or hold under it property not made subject to the process.” Weston v. Beverly, 10 Ga. App. 261 (73 S. E. 404). The issue on the traverse of a garnishee’s answer is indebtedness of the garnishee to the defendant. “A plaintiff by garnishment cannot place himself in a superior position as regards a recovery than is occupied by the principal defendant. The garnishee’s liability .is measured by his responsibility and relation to the defendant.” Butler v. Billups, 101 Ga. 103 (28 S. E. 615); Tim v. Franklin, 87 Ga. 95 (13 S. E. 259); Bates v. Forsyth, 69 Ga. 365. “If the defendant himself, suing the garnishee, could not get a judgment against him, the garnishing plaintiff cannot get a judgment against the garnishee. The creditor may stand in his debtor’s shoes by means of garnishment, but he gains no additional privileges.” Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545 (1), 548 (59 S. E. 473). This rule, under the decisions, seems subject only to the exception that, where the garnishee is in possession of effects of the defendant under a transaction fraudulent as to his creditors, a creditor of the defendant may subject them to garnishment, even though the defendant himself might not recover or maintain an action against the garnishee. Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1, 2 (62 S. E. 82).

(b)- Where, therefore, a plaintiff in garnishment in a city court would not be entitled to recover against the garnishee, under his traverse of the garnishee’s answer, except by the application of a purely equitable rule applicable only in equitable proceedings or money rules, the plaintiff cannot prevail. The cases of Wilkins v. Gibson, Thrash v. Harman, and Wright v. Brown, supra, cited by the learned judge of the superior court in the opinion supporting his judgment, as well as the cases upon which the rule in the Wilkins case is planted, viz. Dawson v. Equitable Mtge. Co., 109 Ga. 389 (34 S. E. 668), and Ford v. Holloway, 112 Ga. 851 (38 S. E. 373), are distinguishable from this ease, in that none of those eases was a garnishment case, but the three Supreme Court authorities involved equitable pleadings and proceedings pending in superior courts, and the two Court of Appeals authorities dealt with eases which, while pending in city courts, were money rules.

The Wilkins case is further differentiated from the instant case in that in the former no assignment of the rents in question to a creditor, such as here claimed, was involved, but the question arose in an equitable" proceeding involving the distribution of rents collected by one who was administrator of the land in question, and as to an accounting for such rents with a creditor firm, of which such administrator was a member, and to which such rents had been paid. It was also in that case apparently recognized that, while such creditor firm, in possession under a security deed from the debtor, would under an equitable rule be accountable to the plaintiff creditor, as holder of a senior security deed, for the rents collected by the firm or by the administrator member (because of the depreciation in value of the security and the insolvency of the debtor’s estate), nevertheless such liability would be only “for whatever amount they had realized from this source over and above the amount necessary to pay their debt.” (113 Ga., p. 57.)

“Where, under a contract for the sale of land, the vendor executes to the vendee the usual bond for titles, and delivers to him the possession of the premises, even if the latter fail to pay the purchase-money at maturity, he may nevertheless retain possession, either by himself or his tenant, until such time as he shall be legally evicted therefrom by the vendor; and the tenant who enters under the vendee cannot, without first surrendering his possession to the latter, attorn to the vendor upon any supposed right of the latter, without the consent of the vendee to rescind the contract of sale.” Broxton v. Ennis, 96 Ga. 792 (1, 2) (22 S. E. 945); Guin v. Hilton Dodge Lumber Co., 6 Ga. App. 484, 486, 488 (65 S. E. 330); Scott v. Ward, 23 Ga. App. 416, 420 (98 S. E. 412). The right of the vendee to hold and control the possession,' with the incident rents, is analogous to that of the grantor, retaining possession under his equity of redemption, as against the grantee in a security deed. See Stevens v. Worrill, 137 Ga. 255, 257 (73 S. E. 366); Stevens v. McCurdy, 124 Ga. 456, 458 (52 S. E. 762); Polhill v. Brown, 84 Ga. 338 (10 S. E. 921). Such a bond for title is assignable either absolutely or as collateral. Where the assignment is absolute, the assignee acquires all the rights and equities to which the assignor was entitled thereunder. Walker v. Maddox, 105 Ga. 253 (2) (31 S. E. 165); Robinson v. Perry, 21 Ga. 183, 186 (68 Am. D. 455); Perry v. Paschal, 103 Ga. 134 (1, 2), 140 (29 S. E. 703). Where the bond is assigned merely as security for the payment of money, the assignee takes what amounts to an equitable mortgage on the assignor’s equitable title. 39 Cyc. 1673. But such an assignee would not, merely by virtue of such an assignment, be entitled to the rents and profits from a tenant who occupied the premises.

(a) The obligee in possession under a bond for title is entitled to lease the premises and to receive the profits therefrom (27 Cyc. 1244, 1245), which rents, accruing during such lawful possession, are themselves subject to his disposal by valid assignment. See Vason v. Ball, 56 Ga. 269, 270. Bent is personalty. Autrey v. Autrey, 94 Ga. 579 (20 S. E. 431). “Personalty to which the owner has a right of possession in future . . is a chose in action” (Civil Code of 1910, § 3648)-; and the claim of a landlord for rents is on the same basis as any other chose in action. 16 B. C. L. 914, § 421. The holder of a bond for title, lawfully in possession of property thereunder, may therefore, without transferring the bond itself, assign to another such right of possession, with the right to lease the premises to a tenant and receive the rents until the obligee’s possession is terminated by the vendor’s action of ejectment or by a lpvy of his claim after reduction to judgment in the manner prescribed by the statutes. Where such an assignment of the rents and profits is inoperative as a good assignment in law, it may nevertheless, in a proper case, take effect as a good equitable assignment.

(b) “Under our Code [of 1882], § 2244 [Civil Code of 1910, § 3653], all choses in action are assignable, but as construed by the decisions . . the assignment must not rest in parol but must be in writing.” Hartford Fire Ins. Co. v. Amos, 98 Ga. 533, 534 (25 S. E. 575); Foster v. Sutlive, 110 Ga. 297 (34 S. E. 1037). The writing is what renders it an assignment in law. The purpose of a written assignment, however, is primarily to vest legal title in the holder of the chose in action, in order that he may have a right of action thereon in his own name; and one who takes a chose in action by an oral assignment under facts and circumstances rendering it valid as an equitable transfer has none the less the rights of an equitable owner, who may file a claim although not entitled to sue in a direct action in his own name. Benson v. Abbott, 95 Ga. 69, 72 (22 S. E. 127); Fla. Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 417 (71 S. E. 734); May v. McCarty, 11 Ga. App. 454 (1), 455 (75 S. E. 672); Whitten v. Little, 2 Ga. Dec. 99; Simms v. Lide, 94 Ga. 553, 555 (21 S. E. 220). Thus, “the real owner of a fund deriving his title through an eqidtable assignment, may assert his right thereto by claim under § 3541 of the Code [of 1882; § 5282 of the Civil Code of 1910] against an attaching creditor of the assignor whose attachment has been served by summons of garnishment.” In such a case the debtor is “to be treated as holding such title as he had in trust for the real owner, and not for the benefit of himself or of his own creditors.” Haas v. Old Nat. Bank, 91 Ga. 307 (2), 313 (18 S. E. 188). Accordingly, if a valid equitable assignment “be made before the service of a summons of garnishment upon the drawee, the garnishing creditor will be postponed to the assignee, and this is true whether the garnishee had or had not been notified of the assignment.” Walton v. Horkan, 112 Ga. 814 (2), 816 (38 S. E. 105, 81 Am. St. R. 77), citing and quoting with approval the rule stated in 14 Am. & Eng. Ene. L. (2d ed.), 857-859, as follows: “As a general rule the plaintiff in garnishment proceedings stands in no better position than the defendant does with respect to the indebtedness sought to be reached by the process of garnishment, and the process of garnishment will not hold anything which is not legally and equitably the property of the principal defendant; and therefore it is universally held that an assignment by the defendant of the claim due to him, irrespectively of whether the assignment is equitable or legal, will take precedence of a subsequent writ of garnishment served upon the debtor at the suit of creditors of the assignor, provided the assignment was in good faith and for a valuable consideration [italics ours]. . . The rule that a prior assignment will take precedence of a subsequent garnishment served on the debtor at the suit of creditors of the assignor applies with equal force where the chose in action is assigned as security, as if the assignment were absolute and the assignor had parted with all his interest, both legal and equitable, in the thing assigned.” An actual valuable consideration must, however, be shown. Jones v. Glover, 93 Ga. 484, 486, 487 (21 S. E. 50); 5 C. J. 931, 910.

(c) Thus, while in a garnishment proceeding legal and not merely equitable principles must be applied, a valid equitable assignment of a chose in action made prior to the service in garnishment will support a claim by the assignee thereof. The question in the instant case which has given the writer considerable difficulty is whether the prior oral equitable assignment of the rents is to be taken as founded on such a valuable consideration as will support the transfer against the rights of the garnishing creditor. While it is true that “the holder of a note as collateral security for a debt stands upon the same footing as the purchaser” (Civil Code of 1910, § 4289), and is to be treated as “a bona fide holder” for a valuable consideration (Civil Code, § 3529), and that “one who takes a negotiable instrument as collateral security for a preexisting debt is the purchaser thereof within the purview of the foregoing rule” (Walden v. Downing Co., 4 Ga. App. 534 (3), 61 S. E. 1127; Harrell v. Nat. Bank of Commerce, 128 Ga. 504 (2), 507, 57 S. E. 869; Lee v. Johnson, 110 Ga. 286, 34 S. E. 568; Kaiser v. U. S. Nat. Bank, 99 Ga. 258 (2), 25 S. E. 620; Gibson v. Conner, 3 Ga. 47, 48, 52); and while it is true, with reference to the transfer of ehoses in action other than promissory notes, that “the surrender and satisfaction [italics ours] of an existing debt, if done bona fide, operates as a present consideration” (Agee v. Rhodes, 20 Ga. App. 117 (2), 92 S. E. 771), and that the transferee of collateral other than negotiable instruments made simultaneously with the pledge, “receiving the same as collateral to secure a bona fide loan,” will “stand in the' same position as a bona fide purchaser for value” of such pledge (Elder v. First Nat. Bank of Jefferson, 29 Ga. App. 455, 456 (2), 115 S. E. 922; Bank of Sparta v. Butts, 4 Ga. App. 308, 61 S. E. 298; Farmers Bank v. Hamilton, 30 Ga. App. 194 (2), 117 S. E. 287), it is nevertheless true that the presumption as to the existence of a valuable consideration when negotiable promissory notes are assigned to secure a past indebtedness is based upon a construction of the negotiable instrument statutes, and is said “to rest largely on commercial necessity;” and a distinction between promissory notes and other conveyances or transfers of ehoses in action as security is recognized by the courts. Sutton v. Ford, 144 Ga. 587 (5), 594 (87 S. E. 799, L. R. A. 1918D, 561, Ann. Cas. 1918A, 106). “One who takes from his debtor” a conveyance or other transfer “for the purpose of securing a pre-existing debt, without any change in condition or present payment or other new consideration, does not rank as a purchaser” for a valuable consideration, unless the existing debt is thereby surrendered and satisfied. Harris v. Evans, 134 Ga. 161 (3, 4) (67 S. E. 880); Mize v. Bank of Whigham, 138 Ga. 499, 503 (75 S. E. 629). "Where, therefore, a claimant in garnishment relies upon what amounts to a mere equitable assignment of rents, transferred as collateral security for a preexisting debt, such existing debt will not of itself afford any presumption as to a valuable consideration supporting the assignment, but the burden is upon the assignee to show some valuable consideration to support the transfer. Jones v. Glover, 93 Ga. 484, 486, 487 (21 S. E. 50); 5 C. J. 931, 932, § 92. We have reached the conclusion that the record in the instant case discloses a valid consideration for the transfer. Not only was Few, the assignee of the right of possession of the property, put into actual possession of the premises, but he was given the right and authority to contract for its rental by securing a tenant; and the record shows that this he actually did, — that the tenant, whose rents constitute the subject-matter of the present controversy, was secured by a contract made through the efforts of the assignee, Few, while in possession under the executed transfer. These facts we think are such as to render the transfer good as an equitable assignment, and to differentiate it from what would be the rule were the assignee relying upon a mere oral assignment of rents and profits to secure a past indebtedness, unaccompanied by actual possession of the premises, and the subsequent labor expended by the assignee in bringing into existence the fund in dispute.

In the instant case the record shows that the defendant in fi. fa. had gone into possession of a house and lot under a bond for title executed January 5, 1920, and that on December 1, 1920, prior to the maturity of the three purchase-money notes falling due January 1, 1921, 1922, ^and 1923, the defendant vendee had transferred to the claimant his bond for title by a written assignment on the back “as collateral security” for a $3,000 note of that date, due January 1, 1922. Under the rule stated in the third division of the opinion, such assignment of the bond for title merely as collateral security did not entitle the assignee claimant to the rents and profits arising from the premises. The record further discloses that, as the purchase-money became due, the plaintiff vendor obtained general judgments thereon against the defendant vendee, and special judgments against the property, but that no levy was made under them; that some time prior to the garnishment, but apparently after the assignment of the bond for title to the claimant, the defendant vendee told the claimant that he could take charge of the property, rent it, and apply the rents upon the old'indebtedness for which the bond for title had been previously assigned as collateral, and delivered' to the claimant the keys of the house; that under this authority the claimant, Few, took possession of the premises, and by a contract of rental made with Walker caused the fund now in dispute to arise. Applying merely the statutory legal rules pertaining to garnishments, but giving effect to such valid equitable assignment of the rents, the rights of the claimant to the fund thus assigned to him and accruing prior to the service of the garnishment proceeding should have been sustained.

Judgment reversed.

Stephens and Bell, JJ., concur.

ON REHEARING.

Jenkins, P. J.

This case was determined by the judge of the superior court on the theory that the defendant in error, Mrs. Pou, was equitably entitled to the rents and profits of the land conveyed by her under bond for title, and it consequently does not appear that, the validity of the alleged previous oral transfer of the rents and profits by Smith to Few was considered by him to be the controlling factor. As set forth under the second division of the syllabus, this court does not think that this equitable principle has application in a garnishment. of this character; .and in writing the original opinion the determining factor as viewed by this court was the validity and priority of the alleged oral transfer of the rents by Smith to Few. Under the particular facts of the case, there were many and varied phases argued in briefs of counsel, and this court failed to take cognizance of one of the contentions referred to but not elaborated in briefs of counsel for defendant in error, to the effect that the trial court erred in receiving, over his motion to exclude, the oral testimony relating to the parol assignment of the rents by Smith to Few, under his contention that the evidence disclosed that whatever trade was made between the. parties had been reduced to writing, that the writing had not been lost, and “was the highest evidence of its contents and of just what the trade was.” It appears from the record that upon the trial of the case it developed in the cross-examination of Few, the assignee of the rents, that after the parol assignment to him he requested his attorney to write to Smith, the assignor, for an order to the tenant to pay the rents to him, the assignee, and that such a letter was in fact written, and was in Few’s possession “somewhere,” but not in court. Upon such disclosure being made, counsel for Mrs. Pou moved to exclude all the testimony relating to the previous oral assignment. It will be observed that all that the testimony with reference to the letter showed was that the tenant was authorized to pay over the rents to Few. There is nothing in the -testimony to indicate that the letter purported to be an assignment, or contained any term or provision agreed upon between the parties, such as had already been made by parol, or that it contained any term or provision contradictory of such previous valid agreement. So far as we can judge, it appears to have been merely in the nature of a notice for the benefit of the tenant and for the purpose of relieving him of any hesitancy which he might have felt in complying with the previous valid oral assignment. Under the law this notice to the tenant garnishee was not necessary, and it does not appear from anything in the record that the letter was in fact written prior to the garnishment. See Walton v. Horkan, 112 Ga. 814 (1, 2, 7), 816, 817 (38 S. E. 105, 81 Am. St. R. 77). It is true that, if the record showed that the letter referred to constituted the basis of Pew’s claim, and constituted the assignment made before the garnishment, upon which he relied, the letter itself would have-to be looked to for the terms of the agreement as therein contained. Gilmore v. Bangs, 55 Ga. 403 (1), 405; Dawson v. Callaway, 18 Ga. 573, 580; Thompson v. Mapp, 6 Ga. 260 (3), 263; Barnes v. Shinholster, 14 Ga. 131 (1), 133, 134. But this principle does not appear to be controlling where, as here, the record indicates that the assignee, Few, does not base his claim upon any assignment alleged to have been made by the letter, and does not even show that the letter was written prior to the garnishment, but that the assignee in fact bases his claim upon the previous valid oral assignment, in the execution of which the subsequent letter was written merely as an additional assurance to the tenant in possession.

Judgment adhered to.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    15675.
    City of Rome v. Dean.
    Decided August 8, 1924.
    Rehearing denied September 30, 1924.
    Action for damages; from Floyd superior court — Judge Wright. April 2, 1924.

      John Gamp Davis, for plaintiff in error.

      Harris & Hnnis, contra.
   Broyles, C. J.

The verdict was amply supported by the evidence, and none of the grounds of the amendment to the motion for a new trial requires a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15685.
    HILLMAN v. FARMERS STATE BANK et al.

    Whether the defendant, Mrs. Hillman, was liable as an original promisor, or was merely a surety on the notes sued on, depended upon her intention, as understood by the other parties to the transaction, at the time she placed her name on the back of the notes. If she then intended to indorse them as surety only, and if that intention was known to the other parties, she, being a married woman, would' not be liable on the notes.
    The court erred iñ sustaining the general demurrer to her plea, in which she set up non-liability for this reason; and the further proceedings in the case were nugatory.
    Decided August 8, 1924.
    Rehearing denied September 30, 1924.
    Complaint; from Stewart superior court — Judge Littlejohn. April 22, 1924.
    Application for certiorari was made to the Supreme Court.
    The Farmers State Bank brought suit on certain promissory notes signed by the Bank of Lumpkin. On the backs of the notes were written the names of the directors of the Bank of Lumpkin, and these directors were also stockholders of the bank. One of these directors who indorsed the notes was Mrs. Hillman, the plaintiff in error. A joint suit was brought against the Bank of Lumpkin and the directors of the bank whose names were placed on the backs of the notes. The petition, however, failed to allege whether these directors were liable as joint principals with the Bank of Lumpkin, or as sureties, or as guarantors. Attached to the petition were copies of certain resolutions of the Bank of Lumpkin, passed through its board of directors and its stockholders. These resolutions were agreed to and signed by both banks in question, and show that the Farmers State Bank was to make a loan to the Bank of Lumpkin and to take charge of the Bank of Lump-kin and to pay off its debts with the proceeds of the loan, and to liquidate its affairs. In the resolutions it was further provided that, as evidences of the loan, nineteen promissory notes were to be executed in the corporate name of the Bank of Lumpkin, the notes to be secured by proper pledges of all the assets of that bank, including choses in action, and also by the personal indorsement of the individual members of its board of directors. This last portion of the resolutions, in our opinion, tended to show that it was the understanding of all the parties to the transaction that the directors of the Bank of Lumpkin were to indorse the notes as sureties or as guarantors, and not as original promisors. It appeared, however, from the petition and its exhibits, that the Bank of Lumpkin and its directors and stockholders had been benefited by the acceptance of the loan from the plaintiff bank. And other portions of the resolutions tended to show that it was the understanding between the parties that the directors of the Bank of Lumpkin were to sign the notes as joint principals- with that bank.
    Mrs. Hillman, the plaintiff in error, filed a plea setting up that when she indorsed the notes she was a married woman, living with her husband, and that she indorsed the notes as a surety only, and therefore was not liable. The court struck the plea on general demurrer, and Mrs. Hillman excepted. Thereafter, upon the" introduction of the notes sued upon and proof as to the service of the notice as to attorney’s fees, the court directed a verdict in favor of the plaintiff for the full amount sued for, and entered up judgment thereon, and Mrs. Hillman again excepted.

      G. Y. Harrell, for plaintiff in error.

      Wallis & Fort, B. 8. Wimberly, Smith, Hammond & Smith, contra.
   Broyles, C. J.

(After stating the foregoing facts.) We think the court erred in sustaining the general demurrer to Mrs. Hill-man’s plea. Under the pleadings and the attached resolutions the question as to whether Mrs. Hillman was liable as an original promisor, or was merely a surety, depended upon her real intention as understood by the other parties to the transaction at the time she signed the notes. If at the time she placed her name on the backs of the notes she intended to indorse them as a surety only, and if that intention was known to the other parties to the transaction, she, being a married woman, would not be liable on the notes. This question should have been submitted to the jury, under appropriate instructions. See, in this connection, Atkinson v. Bennet, 103 Ga. 508 (30 S. E. 599); McIntyre v. Moore, 105 Ga. 112 (1), 114 (31 S. E. 144). The decision in Brooke v. Rutland, 15 Ga. App. 26 (82 S. E. 580), cited and relied on by counsel for the defendant in error, is distinguished by its particular facts from this case. The error in striking the plea rendered the further proceedings in the case nugatory.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


author: Stephens, J.

text:
    15037.
    Palmer-Murphey Co. v. Barnett et al.

   Stephens, J.

1. Where three persons, each desiring to purchase twenty-five tons of fertilizer, enter into negotiations with a “salesman” who has authority to “get out and solicit business, fill in contracts, and send them in for” acceptance by his employer, a fertilizer dealer, by the terms of which negotiations they agree to join with some other person and execute a contract for the purchase of one hundred tons of fertilizer, and where, pursuant to such understanding, and after the departure of the salesman, these three persons sign a written instrument which contains the terms of a contract for the sale to them of one hundred tons of fertilizer, and where one of them, at the salesman’s direction over long-distance telephone, not knowing whether the salesman has obtained a fourth person to sign the contract, mails the written instrument, thus signed by only three persons, direct to the seller, the inference is authorized that the instrument was thus delivered to the seller for the purpose of becoming a legal and binding obligation only in accordance with the previous understanding with the salesman. In such case the sender’s receipt of a duplicate of the instrument, returned to him by the seller, who had signed the same as accepted, but which contained the signature of the three persons only and did not contain the signature of a fourth person, could not amount to a waiver by the signer receiving the duplicate, either for himself or as agent for .the other signers, of the condition precedent that the instrument should become a binding obligation between the parties only upon the procuring of a fourth person joined as party purchaser under the contract. The fact that the instrument was returned without the signature. of a fourth person indicated only that the condition precedent had not happened, or that the fourth person had become bound by a separate instrument, and did not necessarily indicate that the seller was departing from the agreement made as a condition precedent to the instrument becoming a binding obligation. See Rawleigh Co. v. Royal, 30 Ga. App. 706 (119 S. E. 339); Butler v. Citizens Bank, 28 Ga. App. 184 (110 S. E. 501); Hartman Stock Farm v. Henley, 8 Ga. App. 255 (68 S. E. 957); Pidcock v. Crouch, 7 Ga. App. 299 (66 S. E. 971); Heitmann v. Commercial Bank of Savannah, 6 Ga. App. 584 (65 S. E. 590).

Decided August 13, 1924.

Rehearing denied October 1, 1924.

Action, for breach of contract; from Taliaferro superior court-judge Shurley. August 21, 1923.

2. In a suit against the signatory parties by the seller, a plea alleging that, by reason of the above-stated agreement between the defendants and the plaintiff’s alleged agent, no valid and binding legal obligation arose, was good as against demurrer. The terms of the actual agreement made in the negotiations contemplating the contract, — viz., that each of four persons was to purchase twenty-five tons of fertilizer’,— although in conflict with the terms of a written instrument afterwards signed by three of the persons to the effect that the three were obligated jointly to purchase one hundred tons, were part of the res gestte of the transaction, viz., that no contract was actually made. They were not irrelevant, either in the plea or in the evidence, as contradicting by parol the terms of a written contract.

3. It appearing from the evidence, without contradiction, that the person soliciting the contract with the defendants, and who entered into the alleged negotiations containing the agreement as to the condition precedent to the written instrument becoming a binding contract, was the agent of the plaintiff and had authority to “get out and solicit business, fill in contracts, and send them in for” acceptance by the plaintiff, no question of agency was in issue, and the court did not err in assuming such agency to exist.

4. The charge nowhere prejudicially to the plaintiff expressed any opinion upon facts in issue.

5. Certain excerpts from the charge of the court as to conditions precedent and subsequent, want or failure of consideration, and executed and executory contracts, were proper abstract statements of the law, and, if not applicable to the issues presented, were harmless to the plaintiffs.

6. In narrating the' matters which a jury may consider in determining where the preponderance of the evidence lies, as» laid down in the Civil Code (1910), § 5732, the court did not err in omitting some of them, in the absence of a request so to charge.

7. No error of law appears, and the evidence supports the verdict found for the defendants.

8. The court properly overruled the demurrers to the defendants’ amended plea, and did not err in overruling the plaintiff’s motion for a new trial. Judgment affirmed.

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

Application for certiorari was made to the Supreme Court.

George P. Whitman, for plaintiff.

Alvin G. Goluclce, for defendants.


text:
    13966.
    Corporation of the Royal Exchange Assurance of London v. Franklin.
    Decided September 19, 1924.
    Action on insurance policy; from city .court of Waynesboro— Judge W. H. Davis. September 6, 1922.

      Middlebroolcs & Middlebroolcs, H. C. Hatcher, for plaintiff in error.

      C. H. & B. 8. Cohen, F. 8. Burney, contra.
   Stephens, J.

Applying to this case (a suit upon a policy of fire-insurance) the answers of the Supreme Court to certified questions in the case (158 Ga. 644, 124 S. E. 172), the verdict found for the plaintiff for the value of the property destroyed, and attorney’s fees, was authorized under the law and the evidence, and the court did not err in overruling the defendant’s motion for a new trial upon any of the general or special grounds therein contained.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    14261.
    BULL & SON v. CARPENTER, trustee.
    1. No error is shown in the refusal of the trial judge to charge as re: quested by the plaintiffs. In his answer to the writ of certiorari the judge certified that-the requests were “refused for the reason that all the issues involved were covered in the general charge of the court.” The charge is not in the record. “An assignment of error on the refusal to give a written request to charge cannot be considered when the trial judge certifies that he covered the request in his instructions to the jury, and the charge of the court is not specified as a part of the record to be transmitted to this court.” Tucker v. Gen. By. Go., 122 Ga. 387 (7), 393 (50 S. E. 128). This rule, relating to writs of error in the appellate courts from judgments on motions for new trial, is applicable to writs of certiorari to the superior court, where the charge is not included in the petition, attached exhibits, or answer of the trial judge, and where the trial judge, as here, answers in effect that the request was “covered in the general charge.” In such a case the superior court, and this court on a bill of exceptions from its judgment, “must assume that the request to charge was sufficiently covered by other instructions given to the jury as to the matter to which it related.” Freeman v. Mencken, 115 Ga. 1017, 1020 (42 S. E. 369); Mickleberry v. O’Neal, 98 Ga. 42 (5) (25 S. E. 933).
    2. The verdict cannot be set aside as being without evidence to support it, for the reason set forth in the opinion.
    Decided September 19, 1924.
    Certiorari; from Tift superior court — Judge Eve. December 19, 1922.

      J. J. Bull & Son, J. II. Pool, Fuhvood & Murray, for plaintiffs.

      J. S. Ridgdill, 8. F. Mitchell, for defendant.
   Jenkins, P. J.

This was a suit brought by a firm of attorneys against a trustee for a sum claimed to be due for legal services, under an express oral contract alleged to have been made by a predecessor in office of the defendant trustee. In addition to their own evidence in support of their claim, the plaintiffs offered the interrogatories of the former trustee, testifying positively that he had employed the plaintiffs and made a contract with them to represent him as trustee, and that they had successfully represented the trust estate. The defendant, however, offered in rebuttal the depositions of this same former trustee, taken subsequently to his interrogatories, in which he affirmatively denied the making of any contract as trustee or for the trust estate with the plaintiffs, swore that he had contracted solely as an individual for the representation only of his individual interest, which was involved, and made no explanation of his conflicting testimony contained in the interrogatories sued out by the plaintiffs.

As we first conceived the case, it would be controlled by an answer to the following question certified to the Supreme Court: “Where a suit is brought against a trustee for a sum alleged to be due for legal services under and by virtue of an express oral contract alleged to have been made with a predecessor in office of the defendant trustee, and where, in support of his own evidence that such contract was made, the plaintiff introduces the interrogatories of the former trustee, by which the making of the alleged contract is corroborated, but the defendant, the present trustee, introduces in rebuttal depositions of the same former trustee, taken subsequently to his interrogatories,' in which depositions he affirmatively denies the making of the contract sued on, but without any explanation of, his conflicting testimony as contained in the interrogatories sued out by the plaintiff, and where there are no other facts or circumstances in evidence supporting a verdict rendered in favor of the defendant, must the verdict be set aside as being ‘without evidence to support it and contrary to law/ on the theory that it is necessarily based solely upon the evidence of a witness who has knowingly and wilfully testified falsely to a leading and material fact respecting which there could be no mistake or misapprehension?” 158 Ga. 360. See Glenn v. Augusta Ry. Co., 121 Ga. 80, 82 (48 S. E. 684); Plummer v. State, 111 Ga. 839 (1, 2) (36 S. E. 233); Pierce v. State, 53 Ga. 365 (1), 368; Pope v. State, 150 Ga. 703 (4), 705 (105 S. E. 296); Garland v. State, 124 Ga. 832 (3), 835 (53 S. E. 314); Williams v. State, 69 Ga. 1, 34 (28); Cen. of Ga. Ry. Co. v. Mote, 131 Ga. 166 (8) (62 S. E. 164) Payne v. Reese, 28 Ga. App. 180, 181 (110 S. E. 740); Haverty Furniture Co. v. Calhoun, 15 Ga. App. 620 (1), 621 (84 S. E. 138); Ford v. State, 13 Ga. App. 68, 69 (78 S. E. 782). Upon further examination of the record, however, and after the filing of additional briefs, we do not think it necessary to determine the question we have just indicated. We find that the evidence of the witness referred to as given in his depositions for the defendant was to an extent corroborated by the evidence of the subsequent trustee against whom the suit was brought. The latter testified: “It was my understanding that J. J. Bull & Son (plaintiffs) represented J. C. Parker (the former trustee) in the suit to recover his individual part of the estate, and carried the case to the Supreme Court and lost the ease.” See Parker v. Parker, 147 Ga. 432 (94 S. E. 543). The contention of the defendant was that the representation and the services of the plaintiffs to the former trustee were solely for his individual interest and in his individual capacity. While hearsay evidence will not support a verdict, or afford corroboration of a witness who has testified wilfully and knowingly falsely, under section 5884 of the Civil Code (1910), the language of the witness that it was his “understanding” as to certain facts, otherwise positively stated, cannot be rejected as hearsay, but, without further explanation, will be taken as resting upon actual facts within the personal knowledge of the witness. Such a statement could have been tested on cross-examination, and, in the absence of any modification or explanation on further examination, or any exception after timely objection to such evidence, cannot be disregarded. “A verdict which is entirely without any evidence to support it is contrary to law, but a verdict based upon secondary evidence introduced without any objection may be valid, and the same is true where the verdict rests upon sufficient testimony possessing probative value, even though such testimony would not have been competent if a timely and appropriate objection had been made at the trial.” Ga. Coast &c. R. Co. v. Herrington, 14 Ga. App. 539 (2) (81 S. E. 814). “An opinionative statement of a witness, even though it be a conclusion unsupported by such facts as are necessary” to show its correctness, “where no objection is urged thereto upon the trial, cannot be challenged for the first time upon review, as incompetent and insufficient.” Hutchinson v. State, 8 Ga. App. 684 (1), 685 (70 S. E. 63).

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    14278, 14328.
    Mutual Light & Water Co. v. City of Brunswick; and vice versa.

    Decided September 19, 1924.
    Certiorari; from Fulton superior court — Judge Ellis. January 3, 1923.

      Conyers & Wilcox, Colquitt & Conyers, for plaintiff in error.

      R. D. Header, B. J. Reagan, contra.
   Bell, J.

This case is controlled by the rulings of the Supreme Court in answer to a question certified. 158 Ga. 677 (124 S. E. 178). The trial court properly dismissed the certiorari.

Judgment upon the main hill of exceptions affirmed; cross-hill dismissed.

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


text:
    14728.
    Gravitt v. Georgia Casualty Company et al.

    Decided September 19, 1924.
   Jenkins, P. J.

Under the answers of the Supreme Court to the controlling questions in this case, certified to it by this court, the judge of the superior court was correct in setting aside the award of the industrial commission on the appeal therefrom by the insurance carrier. 158 Ga. 613 (123 S. E. 897).

Judgment affirmed.

Stephens and. Bell, JJ., concur.

Appeal; from Gwinnett superior court — Judge Fortson. May 26, 1923.,

H. PL. Perry, W. N. Oliver, for plaintiff.

I. L. Oalces, Charters, Wheeler & Lilly, for defendants.


text:
    14833.
    Powers v. Franklin.
    Decided September 19, 1924.
    Trover; from Madison superior court — Judge W. L. Hodges. June 2, 1923.

      B. T. Moseley, for plaintiff in error.

      O. B. Adams, contra.
   Stephens, J.

1. A tender to the plaintiff in trover of the property alleged to have been converted, when made after the institution of the suit, is not made in compliance with the Civil Code (1910), §4494, when unaccompanied by a tender of hire.

2. The plaintiff in trover having, under the Civil Code (1910), § 5930, the right to elect a verdict, to be discharged in damages alone, it is no concern of the defendant that the court failed to charge that the jury should bring in an alternative verdict for the property or its value, irrespective of what election the plaintiff may have in fact made.

• 3. There being no tender under section 4494 of the Civil Code (1910), and no error in the charge, and there being no complaint of other error, tlie verdict found for the plaintiff in damages alone will not be set aside.

Judgment affirmed.

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


text:
    14853.
    McCluskey v. Still.
   Stephens, J.

1. Although it may be a custom for running accounts to fall due and become payable on January 1 following (Civil Code of 1910, § 3435), yet, for the purpose of foreclosing a lieii arising out of such an account, the account will be regarded as falling due upon “the delivery of the last item constituting a part of the running account covered by the contract.” Park’s Code (1914), § 3353 (2 a); Dunning v. Stovall, 30 Ga. 444; Calhoun Brick Co. v. Pattillo Lumber Co., 10 Ga. App. 181 (2) (73 S. E. 23). A lien cannot be asserted in a suit brought on a running account more than twelve months after the delivery of the last item constituting a part of the running account upon August 27, although the suit is brought within twelve months after the first of January following, from which date, under the custom, the account begins to draw interest.

2. This being a suit to recover for materials alleged to have been furnished to the defendant and used to improve the defendant’s real estate, and io foreclose a materialman’s lien thereon, and there being evidence authorizing the inference that the defendant admitted the indebtedness after the materials had been used, that the defendant ordered some of the materials over the telephone, that some of the materials had been ordered by the defendant’s husband, that some of the materials had been hauled by the defendant’s teams, and that the defendant’s husband, in ordering the materials, was the defendant’s agent, the general ■verdict for the plaintiff, finding the defendant liable, was authorized.

Decided September 19, 1924.

Lien foreclosure; from Eockdale superior court — Judge Hutcheson. May 26, 1923.

J. H. McOalla, for plaintiff in error.

3. It appearing that the lien was recorded as required by law', within three months after the furnishing of the material (Civil Code of 1910, § 3353), but it appearing that the suit w'as not filed within twelve months from the maturing of the contract, under the ruling in paragraph 1 above, the verdict, in so far as it establishes a lien upon the defendant’s property, is unauthorized.

4. The plaintiff having alleged in his petition that the contract was completed on August 27, 1920 (which allegation was not stricken by amendment), and it appearing, from the evidence, that the contract sued on was a running account, under which the last item furnished was on said date, it w'as error prejudicial to the defendant for the court, over proper objection, to admit in evidence testimony of the plaintiff to the effect that the suit was instituted within twelve months from the time it was duo, and that he did not consider an account past due until after the first of January.

5. The court, in the excerpts from the charge excepted to in the motion for a new trial, charged consistently with the rulings laid down in paragraph 1.

6. The request to charge set out in ground number 4 of the motion for a new trial, which is a copy of headnote two of the case of Porter v. Terrell, 2 Ga. App. 269 (58 S. E. 493), was not adjusted to any theory of the evidence, and therefore w'as properly refused. It appears, from every theory of the evidence, that there was more than proof of a mere relationship of husband and wife and the improvement of her real estate with the material furnished.

7. Exceptions to the rejection of an amendment offered by the defendant to her plea, and to the refusal of the court to direct a verdict for the defendant, are not proper grounds of a motion for a new trial.

8. Applying the rulings in paragraphs 3 and 4, the verdict as found for the plaintiff, establishing a lien upon the defendant’s property, being unauthorized, a new trial is hereby granted. But since the verdict, in so far as it finds generally for the plaintiff in a certain amount, is authorized, and there was no error of law affecting it, direction is hereby given that should the plaintiff, before or at the time when the remittitur of this court is made the judgment of the court below, write off from the verdict and judgment all that part establishing a lien in behalf of the plaintiff upon the defendant’s property, the judgment will stand affirmed.

Judgment affirmed on condition.

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


text:
    14863.
    Atlantic Coast Line Railroad Co. v. Barksdale.
   Stephens, J.

1. Loss of property after its delivery to another authorizes an inference that the loss was occasioned by negligence of the person receiving it; as where the handbag of a railway-passenger was lost after the passenger had delivered it to the conductor in charge of the train, for the purpose of its being taken by the conductor from the coach when the passenger was leaving the train at a station.

2. The railway company is under a duty to furnish to a passenger, through its servants in charge of its train, a safe and convenient means for alighting at the place of the passenger’s destination. In this case the conductor in charge of the train, therefore, when taking possession of a passenger’s handbag and carrying it out of the coach for the purpose of assisting the passenger to alight, was acting within the scope of his authority as agent of the railway company, and the company was, by this act of its agent, undertaking to perform such duty owing to the passenger; for negligence in the performance of which the railway company is liable to the passenger.

3. The duty placed upon the passenger by the requirements of the interstate-commerce commission to declare the value of baggage, and limiting the carrier’s liability in case of loss to such declared valuation, applies only to baggage which the passenger has surrendered to the custody of the carrier for the purpose of being transported, — as when baggage is “cheeked,” — and does not apply to hand-baggage taken into the coach by the passenger and generally retained in the passenger’s possession, but only temporarily placed in the custody of the train officials for the passenger’s accommodation and convenience when entering or leaving the train. As to such hand-baggage there is therefore no duty resting upon the passenger to declare its value or the nature of its contents.

4. Applying the above rulings to this case, in which the railway company was sued in tort by one who was traveling as an interstate passenger, to recover for the alleged negligent loss of the passenger’s handbag and its contents, which occurred in another State, after the passenger had delivered the handbag to the conductor in charge of the train, for the purpose of being carried by him from the coach for the passenger’s convenience when alighting, the court had jurisdiction of the defendant, the petition set out a cause of action, and the evidence authorized the verdict found for the plaintiff for the value of the bag and its contents as personal baggage; and the court properly excluded from evidence the regulations of the interstate-commerce commission (set out below) limiting the carrier’s liability for baggage, and also did not err in admitting evidence to the effect that the passenger, when delivering the handbag to the conductor, informed him that it contained valuable papers (the loss of- which was not sued for), since this statement was part of the res gestee and was harmless to the defendant.

5. See, in this connection, the following authorities: Hasbrouck v. New York Central & H. R. R. Co., 202 N. Y. 363 (95 N. E. 808, 35 L. R. A. (N. S.) 537, Ann. Cas. 1912D, 1150); Hines v. Malone, 25 Ga. App. 781 (105 S. E. 37); note in 19 L. R. A. (N. S.) 1011; Kinsley v. Lake Shore & Michigan Central R. Co., 125 Mass. 54 (28 Am. R. 200); Union Pacific R. Co. v. Grace, 22 Wyo. 452 (143 Pac. 353, L. R. A. 1915B, 608); Missouri, K. & T. Ry. Co. v. Kirkpatrick, 165 S. W. 500; Bonner v. Grumbach, 2 Tex. Civ. App. 482 (21 S. W. 1010); Dibble v. Brown, 12 Ga. 217 (56 Am. D. 460); Pullman Co. v. Schaffner, 126 Ga. 609 (55 S. E. 933, 9 L. R. A. (N. S.) 407); Pullman Co. v. Green, 128 Ga. 142 (57 S. E. 233, 119 Am. St. R. 368, 10 Ann. Cas. 893); Atlantic Coast Line R. Co. v. Stephens, 11 Ga. App. 520 (75 S. E. 841).

Decided September 19, 1924.

Action for damages; from city court of Richmond county — Judge Black. July 23, 1923.

Application for certiorari was made to the Supreme Court. The regulations referred to in paragraph 4 of the decision were as follows:

“Southeastern Baggage Tariff No. 9 Interstate Commerce Commission H-198, Rule 10, page 17: Baggage allowance. Subject to limitations in rules 4 and 9, one hundred and fifty pounds of baggage, not exceeding one hundred dollars in value, may be checked without additional charge, ^for each adult passenger, . . except that the liability of the carrier will be limited to the amount of the value declared by the passenger under rule 11, paragraph d. Rule 11, paragraph d, (viz.) Unless a greater sum is declared by the passenger and charges paid for excess value at time of delivery to carrier, the value of property belonging to, or checked for, a passenger, shall be deemed and agreed to be not in excess of the amount specified in this tariff in rules 5, 6, and 10, and the carriers issuing and participating in this tariff will not accept a claim for a greater sum in the case of loss or damage.”

W. K. Miller, for plaintiff in error.

C. E. & B. 3. Cohen, contra.

Judgment affirmed.

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


text:
    14870.
    MANOS v. MYERS-MILLER FURNITURE COMPANY et al.

    A cause of action, upon the theory that the defendant company was negligent in maintaining a “dangerous tier of shelves as an attractive instrumentality to children of tender years and as an invitation to them to investigate it,” is not shown by the plaintiff’s petition, from which it appears that his son, a child of tender years, for whose death he sought to recover damages, went into an alley back of the defendant company’s store, where the tier of shelves stood, and, by climbing up on them, caused them to become unbalanced and fall upon his head and kill him.
    The court did not err in Sustaining the demurrers to plaintiff’s petition.
    Decided September 19, 1924.
    Action for damages; from Fulton superior court — Judge Humphries. June 9, J923.
    The petition of the plaintiff, father of a boy eight years and eleven months old, against the Myers-Miller Furniture Company and another, for damages on account of the death of his son, alleges: “In the rear of the stores occupied by the said defendants there is an alley some 10 or 12 feet wide, which is used by the defendants and the public generally for egress and ingress. The children of the petitioner used the said alley as a short cut in going to and from school and church, etc., and at times played in said alley, all of which the defendants knew or ought to have known in the exercise of ordinary care and diligence. . . The deceased and his younger brother were going through said alley, when they were-attracted by a tier of wooden shelves some six and a half feet high by eight feet in length, each of said shelves being about six or eight inches apart from top to bottom of the tier. Said tier of shelves was so constructed and placed that the base upon which it was resting was narrower by several inches than the top, thus rendering it top-heavy. Said tier of shelves had been placed in the rear of the stores of” the defendant company, “where said company had, knowing it was there, negligently permitted it to remain only two or three feet from the line of the alley, upon their premises, which were unenclosed. Said tier of shelving was an attractive instrumentality filled with latent danger to a child of tender years, and yet inviting him to climb up and see what might be upon the shelves. This deceased . . attempted to do, and when he had gone up several shelves the tier became overbalanced, fell over into the alley upon him, where its great weight crushed his head and killed the boy almost instantly;” that the defendant company “did not remove the said tier of shelves, but, knowing it to be there, allowed it to remain upon their premises as a dangerous and attractive instrumentality to children of tender years -as aforesaid;” and that the defendant company and the other defendant “knowingly and negligently and at one and the same time were thus maintaining the dangerous tier of shelves as an attractive instrumentality to children of tender years and as an invitation to them to investigate it; and as a direct result of their negligence as stated, the deceased . . met his death as indicated.” The court dismissed the petition as to the furniture company, upon its general and special demurrers.

      Wiglitman Bowden, Dorsey, Shelton & Dorsey, for plaintiff.

      Slaton & Hoplcins, Candler, Thomson & Hirsch, for defendants.
   Jenkins, P. J.

(After stating the foregoing facts.) There can be no actionable negligence without the breach of a legal duty. An occupier of land is under no duty to have his premises in safe condition for an adult trespasser to enter thereon. Savannah, Fla. & Western Ry. Co. v. Beavers, 113 Ga. 398, 400 (39 S. E. 82, 54 L. R. A. 314). But all persons are presumed to anticipate the natural and reasonable consequences of their own conduct; and the theory of the so-called “turntable cases” is “that a railroad company, when it sets before young children a temptation which it has reason to believe will lead them into danger, must use ordinary, care to protect them from harm. The notion is that young children are not trespassers; but the circumstances being such that the railroad company must know that the attractiveness of the instrumentality will allure young children to it, the company will be considered as impliedly inviting them to come upon it. The doctrine has been repudiated in many jurisdictions, and this court has refused to extend it beyond the case of a turntable.” Southern Oil Co. v. Pierce, 145 Ga. 130, 132 (88 S. E. 672). In Savannah, Fla. & Western Ry. Co. v. Beavers, supra, cited in the Southern Cotton Oil Co. case, the doctrine of the “turntable cases” is exhaustively discussed, and the Supreme Court adopts the policy of limiting the doctrine, not strictly to turntable cases alone, but of refusing to extend it to cases which upon their facts-do not come “strictly and fully” within the principle upon which those cases rest. See also Atlantic Coast Line R. Co. v. Corbett, 150 Ga. 747, 748 (105 S. E. 358); O’Connor v. Brucker, 117 Ga. 451 (43 S. E. 731); Jones v. Asa G. Candler Inc., 22 Ga. App. 717 (97 S. E. 112).

Counsel for the plaintiff cite the cases of Mills v. Cen. of Ga. Ry. Co., 140 Ga. 181, 182, 186 (78 S. E. 816, Ann. Cas. 1914C, 1098), American Telephone Co. v. Murden, 141 Ga. 208 (2), 211 (80 S. E. 788), Mayor & Council of Unadilla v. Felder, 145 Ga. 440, 441, 443 (89 S. E. 423), and Terrell v. Giddings, 28 Ga. App. 697, 698 (112 S. E. 914). In none of the latter three was the child a trespasser. In the Mills case the casualty arose from a highly dangerous explosive torpedo, the placing of which on the railroad track was alleged to have been “wanton” and not in legitimate rise for signaling purposes. Some instrumentalities, such as explosives and poisons, are inherently dangerous of and in themselves, and to expose children or even adults to their hidden but deadly effect in a way which might reasonably be anticipated to imperil others is actionable negligence, if not more; but unless we felt authorized to extend, rather than restrict, the doctrine of the “turntable” cases, it cannot reasonably be said that the present defendant should have anticipated that a child would have been allured to do the particular thing which brought about the distressing casualty in the instant case. The shelves were not inherently dangerous, nor could they be called alluring; and unless the defendant should have reasonably anticipated that trespassers would be attracted by them so as to enter upon its premises, and after-wards to climb upon the shelves in such way as would cause them to pitch forward, it could not be held liable. The homicide appears to have been a pure and unforeseen accident.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14881.
    McMillan et al. v. Rodgers.
   Stephens, J.

1. Where a distress warrant and a common-law action for rent were both filed on the same day, and a plea in abatement setting up the pendency of the other suit was filed in each case by the defendant, and both cases were referred to an auditor with power to pass upon questions of law as well as of fact, and where the auditor ruled that both suits could not proceed simultaneously, that the plaintiff must elect, and where the plaintiff thereupon elected to proceed upon the distress warrant, the plaintiff cannot afterwards be heard to except on the ground that the finding of the auditor sustaining the plea in abatement filed in the distress-warrant proceeding was error.

2. Where a tenant, in a suit against him by the landlord to recover rent, pleads that certain improvements made by him on the rented premises were accepted by the plaintiff in part payment of the rent, and where, upon the reference of the ease to an auditor, the auditor finds against the tenant’s plea and in favor of the plaintiff in a certain sum arrived at without crediting the defendant with the amount of the improvements, an exception to the auditor’s report, filed by the defendant, in which the amount thus found is excepted to only upon the ground that the finding oí the auditor against the allowance of the improvements as a credit upon the rent due by the defendant was incorrect, presents only one issue for the jury, — that is whether the defendant is entitled to a credit for any improvements, and, if so, in what amount.

Decided September 19, 1924.

3. Where, in such a ease, in answer to specific questions propounded, the jury found that the defendant was not indebted to the plaintiff the amount found by the auditor, but that the defendant was entitled to a credit in a definite amount’ for the improvements made by him upon the property, the amount found for the plaintiff by the auditor should therefore be credited with the amount thus found by the jury as due to the defendant as a credit for the improvements. This amount, being mathematically ascertained, must yield to a finding by the jury in answer to another question at the same time propounded, inquiring as to the total amount due by the defendant to the. plaintiff. Verdicts will be construed in the light of the pleadings and the issues presented, and so as to give effect to the true intendment, and, to effect this purpose, matter which is clearly surplusage will be disregarded. Civil Code (1910), §§ 5927, 5928; Geer v. Thompson, 4 Ga. App. 756 (62 S. E. 500); Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390 (73 S. E. 522).

4. Where the amount due the plaintiff as found by the auditor, who allowed no credit to the defendant for the improvements, was $5,192.19 principal, and interest, a finding by the jury upon the exceptions to the auditor’s finding, that a credit of $2,103 be allowed the defendant for the improvements, will be construed as a finding in favor of the plaintiff in an amount equal to $5,192.19 found by the auditor, less the $2,103 and interest found by the jury as the amount which should be credited to the defendant. This is time notwithstanding a finding by the jury, in answer to a question propounded, that “the total amount due plaintiffs by defendant as principal and interest on account sued for [is] $1,950.” Construing the entire verdict of the jury as represented by the answers to all the questions propounded, the finding in favor of the plaintiff in the sum of $1,950 must necessarily be an error in calculation, or must have been arrived at by a consideration of matters beyond the issues submitted upon the exception to the auditor’s report.

5. Construing the exceptions' to the auditor’s report filed by the defendant, copies of the substantial parts of which are hereto attached, as being exceptions only to the report of the auditor finding against a credit to the defendant for the improvements made by him upon the rented premises, and construing the answers of the jury to the specific questions propounded, copies of which are hereto attached, the decree entered upon the verdict in favor of the plaintiff, only in the sum of $1,950, is not founded upon the verdict,, properly construed, and must be set aside, and a decree entered finding for the plaintiff in accordance with the rulings here made.

Judgment reversed.

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

Distraint, etc.; from Lincoln superior court — Judge Shui’ley. June 25, 1923.

Exceptions of fact to tlie auditor’s report:

“Defendant excepts, as a matter of fact, to the finding of fact stated . . in the report of the auditor . . ' as follows: CI find against the defendant’s plea of recoupment or set-off of the value of any improvements made by him on the place during tlie tenancy except those which the contract stipulated.’ The suit in this case, as determined by the auditor’s report, is a proceeding upon a distress warrant for rent, to which the defendant filed his counter-affidavit, in which he set up the improvements referred to in the above-quoted finding of facts as a recoupment or set-off to plaintiff’s claim for rent. The proof shows that the said improvements were consented to by plaintiffs and agreed to be paid for by them, and that a settlement Avas made with plaintiffs, in which they gave defendant credit for said improvements.

“Defendant excepts, as a matter of fact, to that portion of the auditor’s report contained in the 6th paragraph of the finding of fact in said report and appearing on page 5 of said report and stated as follows: CI find that after calculating the value of the cotton due each year on November 15th of each year, and after deducting therefrom the payments disclosed by the evidence and shown by my previous report, that the defendant OAved the plaintiffs in the aggregate, on September 15th, 1922, the principal sum of $5,192.19, and that on said date, September 15th, 1922, the defendant owed the plaintiffs as interest the sum of $897.22. These amounts, — that is the $5,192.19, as principal, and the $897.22, as interest, — are arrived at by the calculations made and set out in my original report on pages 9 to 12 inclusive, which calculations are herein referred to and made a part of this report. I therefore find for the plaintiffs against defendant $5,192.19 principal’ and $897.22 interest up to September 15th, 1922.’

“Said findings seek to incorporate as a part thereof a portion of a previous report of the auditor in said ease, which was referred to said auditor on the grounds hereinbefore set out in” these exceptions, which defendant contends cannot be done.

“The finding of the auditor excepted to in this paragraph doubtless undertakes to state the amounts of principal and interest which the auditor finds to be due by defendant to plaintiffs as rent for the years 1915, 1916, 1917, 1918, 1919, 1920, and this finding, as shown by the finding excepted to in paragraph one of the exceptions to the findings of fact, being the paragraph immediately preceding this, does not take into account any credit for improvements whatsoever, but simply takes into account the amount of cotton due under the contract and the amount of cotton paid thereon without allowing any credit whatever for improvements. Defendant contends that this finding of the amount due as principal and interest is erroneous, for, as shown by the testimony set out and referred to in the preceding paragraph of these exceptions, he should be and was credited by plaintiffs for the improvements referred to, and that he owes plaintiffs nothing either as principal or interest except for the year 1921, as stated in his plea, a settlement in full having been made with plaintiffs for the years previous to 1921, as shown by the testimony hereinbefore set out and referred to.”

The questions propounded to the jury and their answers are:

“(1) Is defendant entitled to any credit for improvements placed or erected on the premises rented? Yes.

“ (2) Is the defendant due plaintiffs the amount found by the auditor ? No.

“(3) If not, what amount is due defendant for improvements-on the premises? $2,103.00.

“(4) If so, what is total amount due plaintiffs by defendant as principal and interest on account sued on? $1,950.00.”

Colley & Colley, Homer Legg, for plaintiffs.

Burnside & McWhorter, M. L. Felts, for defendant.


text:
    14884.
    Rogers v. Martin.
   Stephens, J.

1. The right to except to a verdict upon the ground of the opposite party’s association with members of the jury pending the trial is waived when the party objecting had acquired knowledge of such fact before the jury retired. The ruling in Rainy v. State, 100 Ga. 82 (a.criminal case), in which case it appears that the defendant’s attorney, but not that the defendant himself, had such knowledge, is distinguishable.

2. Where the evidence adduced upon the hearing of a motion for a new trial presents an issue of fact as to whether there was an attempt to bring any undue influence to bear upon the jury, through the instrumentality of the respondent, a finding by the trial judge, against an exception to the verdict upon this ground, settles the facts adversely to the movant; and in this ease the exception to the verdict upon such ground is not predicated upon any established facts, and therefore it does not appear that the court erred in overruling the motion for a new trial based upon such ground.

Decided September 19, 1924.

Damages; from Whitfield superior court — Judge Tarver. June 3, 1933.

W. E. & W. G. Mann, for plaintiff in error.

0. D. & E. K. McOutchen, contra.

3. Where, in order to withhold from the jury all knowledge of the contents of a verdict rendered on a former trial of the case, counsel pasted á piece of paper over the verdict, which appeared to be written upon one of the papers submitted to the jury, and where the motion for a new trial raised an issue of fact as to whether the piece of paper was so pasted as to obscure the verdict entirely, and there was also an issue of fact as to whether the jury, if they obtained knowledge of the contents of the former verdict, did so by reason of the verdict not having been entirely obscured by the piece of paper pasted over it, or by reason of the piece of paper afterwards becoming unpasted, a finding by the trial judge against the ground that the contents of the former verdict had become revealed to the jury settles the fact adversely to the movant. In this case the exception to the verdict upon such ground is not predicated upon any established fact, and therefore it does not appear that the court erred in overruling the motion for a new trial based upon such ground.

4. The relationship by marriage of one of the jurors to the brother of one of the parties litigant does not amount to a disqualification of the juror.

“The groom and bride each comes within The circle of the other’s kin;
But kin and kin are still no more Related than they were before.”

Bleckley, O. J., in Central Railroad & Banking Co. v. Roberts, 91 Ga. 513, 517 (18 S. E. 315).

5. This being a litigation between two adjoining landowners, where the plaintiff seeks damages upon the ground that the natural flow of water from his land upon the defendant’s land has been interfered with by the defendant, and there being evidence to sustain this contention, the verdict found for the plaintiff was authorized. Goldsmith v. Elsas, 53 Ga. 187.

6. The defendant’s contention, that any alleged right of the plaintiff to the drainage of his premises by an artificial ditch upon the defendant’s premises was a mere license and revocable by the defendant, is immaterial. Judgment affirmed.

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


text:
    14889.
    Blumberg Brothers Co. v. Odum, trustee, et al.

    Decided September 19, 1924.
    Money rule; from city court of Valdosta — Judge Little. June 9, 1923.

      A. T. Woodward, Dan B. Bruce, for plaintiffs in error.

      Patterson & Copeland, Franklin & Langdale, contra.
   Stephens, J.

1. Where a petition upon which the defendant has, before filing, acknowledged service and waived filing and process, is filed after the convening of the court to which it is returnable, and a judgment thereon rendered at that term of court, the judgment is void as to third persons. Civil Code (1910), § 5603; American Grocery Co. v. Kennedy, 100 Ga. 462 (28 S. E. 241); Ainsworth v. Mobile Fruit &c. Co., 102 Ga. 123 (29 S. E. 142); Smith v. First National Bank of Waycross, 143 Ga. 543 (85 S. E. 696). The' ruling here made and the eases cited are distinguishable from Burgin Glass Co. v. McIntire, 7 Ga. App. 755 (68 S. E. 490), where the judgment in a suit in which the defendant had waived the statutory time for filing the petition was rendered at a later term and within the statutory jurisdiction of the court as respects the actual time of filing the petition. See Ga. L. 1918, p. 345, as to the city court of Valdosta.

2. A trustee in bankruptcy represents all the creditors, and, as to the bankrupt’s property not in custody of the bankruptcy court, “shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied” (bankruptcy act of 1898, as amended by act of 1910, § 47), and therefore is entitled, in the interest of all the creditors, to any property of funds belonging to the estate of the bankrupt as against any lien asserted by virtue of a judgment as aforesaid which is void as to third persons.

3. A judgment rendered on a money rule against a sheriff, as between the conflicting claims of the trustee in bankruptcy and such a judgment creditor whose judgment is void as to third persons, which awards the funds to the trustee in bankruptcy, is not error.

Judgment affirmed.

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


text:
    14891.
    DABNEY v. BRIGMAN MOTORS COMPANY.
    “A surety who has paid the debt of his principal is subrogated, both at law and in equity, to all the rights of the creditor, and, in a controversy with other creditors, ranks in dignity the same as the creditor whose claim he paid. He is entitled, also, to be substituted in place of the creditor as to all securities held by him for the payment of the debt.” Civil Code (1910), §§ 3567, 3568. The fact that when a note was paid by the surety, and it, with the mortgage securing it, was surrendered by the creditor to him, the word “Paid,” dated and signed, was written across the face of the note and the mortgage, amounts to nothing more than a receipt for the money by the creditor to the surety, and does not operate legally to extinguish the rights of the surety against the principal, or against other creditors of the principal contending for the mortgaged property, unless it he made to appear that it was the intent that such payment by the surety should operate to satisfy and extinguish the instruments; especially would this be true where it does not appear that the contending creditor had knowledge of such entry.
    Decided September 19, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. June 5, 1923.
    W. M. Dabney purchased an automobile from Brigman Motors Company for $900. Of the purchase price he borrowed $700 from a loan company on a note, signed by himself and by J. T. Dabney as surety, which was secured by a mortgage on the car, executed by him on the same date and recorded. The seller of the car had actual.knowledge as to how the purchase was financed. The amount called for by the loan note and the mortgage was subsequently paid by the surety to the loan company, and both instruments were marked “Paid,” with an entry of the date of payment, by the attorney for the loan company, and by it surrendered to the surety. About a year thereafter, the owner of the car, W. M. Dabney, carried it to the Brigman Motors Company for repairs, and, upon the bill therefor not being paid, it was advertised and sold by the latter company under a mechanic’s lien, and by it bought in at the sale. After the judicial' sale J. T. Dabney, the surety on the note referred to, claiming the right of subrogation, foreclosed the mortgage made to secure the loan note. To this foreclosure the Brig-man Motors Company, as purchaser at the judicial sale under its mechanic’s lien foreclosure, interposed a claim. The judge of the municipal court of Atlanta held in favor of J. T. Dabney, under his right of subrogation. On- certiorari the judge of the superior court reversed this judgment, and in his order sustaining the certiorari said: “The plaintiff was not a party to the mortgage. Neither did he acquire legal title to the same. His suit, filed in his own name, is based upon an alleged equitable right, by way of subrogation. The mortgage note was paid and marked paid without any effort to obtain a transfer of the same. It was only after the property had been sold under judicial process and bought by the claimant that the claimant (surety) undertook in his own name, after the mortgage had been paid and marked satisfied, to foreclose it.”

      Lowndes Calhoun, for plaintiff.

      A. E. Wilson, Neal G. Goss, fox defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) “A surety who has paid the debt of his principal is subrogated, both at law and in equity, to all the rights of the creditor, and, in a controversy with other creditors, ranks in dignity the same as the creditor whose claim he paid.” Civil Code (1910), § 3567. “He is entitled, also, to be substituted in place of the creditor as to all securities held by him for the payment of the debt.” Civil Code, § 3568. Since the adoption of the code, not only is he entitled to maintain his suit in equity against his principal upon the implied promise of indemnification, but by virtue of the statute he has become legally subrogated to the rights of the creditor so as to permit him to sue on the original indebtedness. The rule in equity was in effect the same. Even before the adoption of the code, it was “the doctrine of the civil law, and was the doctrine of the English courts of chancery in Lord Hardwick’s day and at the time of the Revolution, that the surety is entitled, upon payment of the debt of his principal, not only to have full benefit and control of all securities which the creditor has taken to assure his debt, but also to be substituted, as to the very debt itself, to the creditor and to have it assigned to Mm.” Train v. Emerson, 141 Ga. 95, 96 (80 S. E. 554, 49 L. R. A. (N. S.) 950). While the surety, upon Ms payment of the principal’s obligation, is entitled to have the evidence of indebtedness assigned to himself (see also 25 R. C. L., p. 1387, § 69), it was held, even before the adoption of the code, that “it is quite immaterial whether there is in point of fact an assignment of the debt or not; for if upon equitable principles the surety is entitled to it, chancery will consider that as done which ought to have been done.” Lumpkin v. Mills, 4 Ga. 343, 348. Since the adoption of the code it is in this State settled that, without the necessity of resorting to equity, “he who has a legal right of present substitution in place of a creditor is already substituted; he need not appeal to any court to ascertain and declare whether the facts of his case entitle Mm to substitution, nor report to any court that he elects or has elected to be substituted. . The code clothes the surety with the legal title to the security which he pays off. . . By legal subrogation the paper becomes Ms property, and the creditor has no right to withhold it from his possession. It is equally certain that he could maintain an action upon it against his principal for reimbursement.” Hull v. Myers, 90 Ga. 674, 682, 683 (16 S. E. 653). See also Anderson v. Armistead, 18 Ga. App. 387, 388, 390 (89 S. E. 525); Travis v. Sams, 23 Ga. App. 713 (1), 714 (99 S. E. 239). Thus, where a note is signed by a principal and a surety, secured by a mortgage on personalty executed by the principal in favor of the payee, and both obligations are paid by the surety and surrendered to him, he is subrogated at law as well as in equity to the rights of the payee creditor, is “substituted in place of the creditor as to” the mortgage (Civil Code, §§ 3567, 3568), and is entitled to control and foreclose it without the necessity of obtaining a formal assignment from the payee creditor, in order to indemnify himself to the amount thus expended. Since, “in a controversy with other creditors,” the surety, as the subrogated and substituted owner of the mortgage, “ranks in dignity the same as the creditor whose claim he paid,” the mortgage lien will take priority over the claim of one subsequently acquiring title to the mortgaged property by virtue of a purchase made at a sale under a foreclosure by him of a mechanic’s lien, where it appears that the claimant, at the time of making the repairs and purchasing the property, and from the time of the execution of the mortgage, had actual knowledge of its existence and of the contract of suretyship.

The fact that the note and the mortgage were simply marked “Paid,” dated and signed, at the time of payment by and surrender to the surety, without indicating that payment was being made by the surety, merely for the purpose of subrogation, would not affect .their discharge or cancellation, so far as the right of the surety extends to enforce them against the principal or against other creditors of the principal contending for the mortgaged property, in the absence of' any proof that the parties actually intended to cancel and discharge the instruments in toto; especially would this be true where it is not made to appear that the contending creditor had knowledge of such entry. It does not appear whether the mortgage had ever been canceled of record, in which event the rule and priorities might perhaps be different, or the aid of equity required to restore it to vitality. See Wilkins v. Gibson, 113 Ga. 31 (1, 2), 45, 46, 50 (38 S. E. 374, 84 Am. St. R. 204). Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14903.
    TALLENT v. HUNTER.
    1., Where supplies necessary to the operation of a sawmill are furnished to the person operating the mill, a lien therefor, as provided in the Civil Code (1910), § 3358, will not attach as against the title of a third person in the lumber sawed, who is an entire stranger to the contract under which the supplies are furnished, and whose only relation to the transaction is that of one who has furnished his own timber and has contracted with the operator of the sawmill to saw such timber into lumber for the owner.
    2. Direct periodic payments by the owner of the timber of wages to the laborers at the sawmill employed by the person operating the mill, ' made for the purpose of facilitating the sawing of the lumber and to prevent a shutting down of the mill to the detriment of the owner of the lumber, and also advances in money made to the person operating the mill for the purpose of enabling the latter to make payments upon his account due for supplies furnished to the mill, are not such acts as would authorize any one dealing with the person operating the mill to infer that the latter, when operating the mill and sawing the lumber, was acting as agent for the owner of the lumber.
    Decided September 19, 1924.
    Claim; from Columbia superior court — Judge Franklin. July 10, 1923.

      William E. Fleming, for plaintiff in error.

      Pierce Brothers, contra.
   Stephens, J.

M. H. Hunter claimed a lien under § 3358 of the Civil Code (1910) for supplies furnished to a sawmill operated by W. R. Harris, and foreclosed the lien by levying upon certain lumber as the product of the mill. J. A. Tallent interposed a claim of title to the lumber. Upon a trial of the issue thus formed the jury found for the plaintiff.

The evidence is undisputed that Harris operated the sawmill and sawed the lumber, under contract with Tallent, from timber which belonged to Tallent, and that the title to the lumber sawed was in Tallent. The verdict establishing the plaintiff’s right to a lien upon the lumber belonging to Tallent could therefore be sustained only upon the theory that Harris, the person to whom the supplies were furnished, acted as agent for Tallent when' sawing the lumber, or that Tallent by his acts had held Harris out to the plaintiff as Tallent’s agent. The only evidence tending to sustain the plaintiff’s contention on the theory of agency is found in the acts of Tallent in periodic payments of the wages of the laborers of Harris for work done in operating the sawmill during the time that Tallent’s lumber was being sawed, which payments were made for the purpose of facilitating the sawing of Tallent’s lumber and preventing the mill from being shut down, also in making certain advances in money to Harris for the purpose of payments on account due by Harris to the plaintiff. These acts of Tallent are perfectly consistent with the contractual relationship whereby Tallent had furnished the timber and employed Harris to saw it into lumber for him. They amounted to no more than payments to Harris by Tallent under the contract, and cannot be regarded as acts holding Harris out as Tallent’s agent to saw the lumber belonging to Tallent. Tallent had no direct dealings with Hunter, and therefore the verdict for the plaintiff, finding the property subject to the lien, cannot be sustained, under the decision in Sattes & Wimer Lumber Co. v. Hales, 11 Ga. App. 569 (75 S. E. 898), which held as follows: “One who hauls logs to a sawmill with "the knowledge and consent of the owner, who, in accepting the laborer’s services, assumes to direct him as to the manner in which the logs should be cut, and what logs are to be hauled, may foreclose his statutory Jien for hauling the logs upon the lumber cut therefrom, although the lienor was not employed in the first instance by the owner to haul the logs. The lien of a laborer upon the products of his labor cannot be defeated by one who has knowledge of the performance of the labor and who accepts the benefit thereof, otherwise than by proof that the lien was waived or has been discharged by payment.”

The verdict for the plaintiff was therefore without evidence to support it, and the overruling of the defendant’s motion for a new trial was error. See, in this connection, Mauck v. Rosser, 126 Ga. 268, 272 (55 S. E. 32); Prince v. Neal-Millard Co., 124 Ga. 884 (53 S. E. 761, 4 Ann. Cas. 615); Lanier v. Bailey, 120 Ga. 878 (48 S. E. 324); Reppard v. Morrison, 120 Ga. 28 (47 S. E. 554); Walker v. Burt, 57 Ga. 20, 21; Quillian v. Central R. &c. Co., 52 Ga. 374; Hull v. Anderson Lumber Co., 17 Ga. App. 40 (86 S. E. 257).

Judgment reversed.

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