text:
    14612.
    Stafford v. Mock, administratrix.
    Decided November 24, 1923.
    Lien foreclosure; from city court of Sylvania—Judge Evans. April 10, 1923.
   Jenkins, P. J.

1. The affidavit of foreclosure of a landlord’s lien for supplies, wherein it is set forth that “the debt herein alleged to be due is for supplies furnished by said landlord to said tenant to make said crop,” does not appear to be deficient (as contended by the plaintiff in error in his brief) by reason of having failed to show that the .lien was for supplies furnished the defendant by the plaintiff as landlord for making the crops on the rented premises during the current year. See also, in this connection, Emerson v. Knight, 130 Ga. 100 (2) (60 S. E. 255).

2. The court did not err in the ruling excepted to, sustaining the demurrer to the items of damages ordered stricken from the counter-affidavit, such a claim being too remote and speculative to be the' basis of computation. Butler v. Moore, 68 Ga. 780 (45 Am. R. 508); Codman v. Roberts, 27 Ga. App. 780 (109 S. E. 536); Savannah Chemical Co. v. Bragg, 14 Ga. App. 371, 374 (80 S. E. 858). In the ease of Sheppard v. Warthen, 19 Ga. App. 677 (92 S. E. 39), there was an alleged total breach of performance by the landlord, and an alleged necessary complete abandonment of the contract by the tenant. In such a case the fertilizer which ' has been actually applied prior teethe landlord’s breach of his agreement became a total loss, and the basis of the recovery could be measured accordingly.

Judgment affirmed.

Stephens and Bell, JJ., concur.

To the foreclosure of a landlord’s lien for supplies, amounting to $379.50, the defendant interposed a counter-affidavit, admitting the advances alleged to have been made by the plaintiff, but setting up that the plaintiff had agreed to advance the sum of $300 in cash and had furnished only $177 thereof, and that by reason of this default the crop.as made by the defendant on the rented premises had been injured and curtailed to the extent of seven bales of cotton worth $700; that a half of the value of the fertilizer used had been lost, thus entailing an additional loss of $85; and that by reason of the said partial breach of the plaintiff’s agreement, the defendant had been unable to gather his fodder, valued at $30. The court sustained a demurrer to the first two of these three items of damages, and overruled the demurrer to the last item, and the jury found a verdict for the plaintiff in the sum of $340.50. The defendant excepted to the sustaining of the demurrer as to the first two items.

II. A. Boykin, for plaintiff in error.

J. II. Howard, contra.


source: Caselaw Access Project

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

license: Public Domain

text:
    14622.
    Walker v. Smith, sheriff.
    Decided November 23, 1923.
    Adhered to on rehearing, February 23, 1924.
    Action for damages; from Floyd superior court—Judge Wright. March 22, 1923.
    Application for certiorari was denied by the Supreme Court.

      Henry Walker, F. W. Copeland, for plaintiff.

      M. B. Eubanks, Harris & Harris, for defendant.
   Jenkins, P. J.

This case is controlled by the ruling made in Springer v. Owen, 145 Ga. 730 (89 S. E. 780), and there being no assignment of error in the record which can be determined without reference to the unapproved and unidentified evidence accompanying copies of the pleadings, the judgment must be affirmed. See also Rushing v. DeLoach, 149 Ga. 483 (3) (100 S. E. 571).

Judgment affirmed.

Stephens and Bell, JJ., concur.

ON REHEARINS.

Jenkins, P. J.

Irrespective of whether or not the evidence as we find it in the record is properly before us (see Stephens v. Woolbright, 60 Ga. 322, 324; Jones v. Wadley, 145 Ga. 569, 89 S. E. 681; Springer v. Owen, 145 Ga. 730, 89 S. E. 780; Rushing v. De- Loach, 149 Ga. 483 (3), 100 S. E. 571; Ga. R. Co. v. Greer, 7 Ga. App. 292 (1), 294, 66 S. E. 961), we could not pronounce that the court below abused its discretion in refusing a new trial. In this case the sheriff was sued for damages on account of an alleged breach of duty in accepting a bond with an insolvent surety, upon a counter-affidavit filed by a tenant in an eviction proceeding which had been previously brought by the present plaintiff as landlord, under section 5385 of the Civil Code (1910). In the present case the court directed a verdict for the defendant. The motion for a new trial does not except to this, but contains only the general grounds. From an examination of the evidence, there appears to have been no proof either of insolvency of the bondsman or of any breach of duty by the defendant sheriff in connection with the former proceeding. The affidavit and warrant to evict the tenant were sued out before a justice of the peace, and the warrant was executed by a constable. Although it seems that the papers in the previous eviction case passed through the sheriff’s office on their return from the justice’s court to the superior court, for trial of the issue under section 5388 of the Civil Code (1910), it was not shown that the sheriff had received, approved, or passed upon the bond tendered by the tenant with the counter-affidavit, but presumably such papers would have been received by the constable executing the warrant. The verdict for the defendant sheriff was authorized, if not demanded, by the evidence.

Judgment adhered to.

Stephens and Bell, JJ., concur.


author: Jenkins, P. J.

text:
    14629.
    Phillips v. Cleveland.
   Jenkins, P. J.

In this suit for damages on account of injuries alleged to have been occasioned to plaintiff’s mule by a runaway team of defendant, in which a verdict was rendered for plaintiff, no error of law is assigned. Whether or not the testimony indicating knowledge on the part of the owner that the team had run away on another occasion would bring the action within the purview of section 4417 of the Civil Code (1910), relating to liability for keeping and careless management of vicious or dangerous animals, the allegations and proof make out a case, under authority of Phillips v. Dewald, 79 Ga. 732, 735 (7 S. E. 151, 11 Am. St. Rep. 458), and Browder-Manget Co. v. Calhoun Brick Co., 138 Ga. 277, 279 (75 S. E. 243), on account of what the jury was authorized to find was the negligence of the defendant in leaving the team unhitched and unattended in the town street, regardless of any dangerous or vicious disposition on tlieir part. While the evidence for the plaintiff on this point was somewhat weak, his own testimony that the team was “left on the street without a driver” is sufficient to render this court powerless to set aside the approved verdict of the jury. See also 3 Corpus Juris, 93; 1 R. C. L. 1108-1110.

Decided November 23, 1923.

Action for damages; from Campbell superior court—Judge Hutcheson. March 31, 1923.

J. F. Goliglvlly, for plaintiff in error.

T. W. Evans, II. A. Allen, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14636.
    NEVIL v. TRAPNELL-MIKELL COMPANY.
    1. In this suit on open account for goods furnished the defendant’s son, upon the theory that the credit had been extended solely to the defendant and on his express authority, the evidence, though conflicting, abundantly authorized the verdict for the plaintiff as to all items except the first charge for furniture, and as to that item there was slight evidence from one of the partners, sufficient to authorize the verdict.
    2. Exceptions to the admission of evidence which fail to state the name of the witness whose testimony was admitted, or what objection was offered, cannot be considered. Hera v. Glaflin Go., 101 Ga. 615 (1) (29 S. E. 33) ; Peeples v. Butler, 21 Ga. App. 31$ (94 S. E. 278) ; Oity of LaGrange v. Ootter, 29 Ga. App. 577 (1) (116 S. E. 204). Nor can exceptions to the failure to give certain requested instructions to the jury be considered, when the exceptions fail to show that the request was made in writing at the proper time. Dalton v. State, 28 Ga. App. 507 (5) (112 S. E. 152) ; Keese v. Mize, 27 Ga. App. 666 (4) (110 S. E. 417); Smith v. State, 27 Ga. App. 268 (1) (108 S. E. 67). Moreover, the court did not err in refusing the defendant’s oral request to charge the law as to the statute of frauds, where the contention of the plaintiffs was that the defendant was liable on the account not as surety, but upon an original undertaking, and the evidence authorized a verdict in their favor on this theory (Gorctray v. James, 19 Ga. App. 156, 91 S. E. 239), and where the defendant failed to plead in the court below any such defense. Gambo v. Dugas, 145 Ga. 614 (1) (89 S. E. 679); Brannen v. McElween, 19 Ga. App. 518 (1) (91 S. E. 913). The exception to the court’s failure to charge “that the written slips or original charge tickets were the original entries and highest and best evidence of the account sued on,” for which no written^.request was made, is without merit; since it appears that these charge-tickets, made subsequently to the alleged oral authorizations of the defendant to furnish the goods, and at the time the various items were furnished, were merely unsigned memoranda which embodied no contract, and, while they could have been properly considered by the jury as admissions against the plaintiffs as to such of them as were in fact made out in the name of the son, did not preclude the consideration of parol testimony with reference to the actual contract. Delaware Insurance Go. v. Penn Ins. Go., 126 Ga. 380, 387, 389 (55 S. E. 330, 7 Ann. Cas. 1134) ; Goldsmith v. Marcus, 7 qa. App. 849, 851 (68 S. E. 462) ; Enc. of Ev. 298. The remaining exception is treated in the opinion.
    Decided November 23, 1923.
    Complaint; from city court of Statesboro—Judge Proctor. February 16, 1933.

      Moore & Neville, for plaintiff in error.

      F. B. Hunter, Deal & Renfroe, contra.
   Jenkins, P. J.

The court charged the jury as follows: “There is only about one real issue in the case, and that is whether or not, if S. L. Nevil authorized Trapnell-Mikell Company to sell these goods to his son, Felton Nevil, or any part of them. I charge you in this case that if you find the plaintiff’s contention is true, that is, that S. L. Nevil, the defendant in this case, authorized them to extend this credit to his son Felton Nevil and agreed with them that he would be responsible for these articles sold, in that case you would be authorized to find for the plaintiff; the plaintiff would be entitled to recover if you find that to be the truth of the case. On the other hand, if you find that is not the truth of the case; if you find thaj; S. L. Nevil did not authorize Trapnell-Mikell Company to sell these goods to his son, Felton Nevil, and agreed to become responsible for them, in that case the plaintiff could not recover and your verdict would be for the defendant. I charge you further in this case, if you find that S. L. Nevil, the defendant, authorized Trapnell-Mikell Company to sell or furnish any part of these goods to his son, Felton Nevil,'and he would be responsible for any certain articles and amounts, in that case your verdict would be for the plaintiff for that amount, whatever he authorized the plaintiff to sell his son, Felton Nevil, in case you find that he authorized them' to sell him anything, or agreed to become responsible for any part of these goods. ' Now, 'as before ., stated, ■ that is. .about the only issue in .the case .for you .to-.deter'minel” -After defining 'preponderance -of 'the 'evidence,, -the -.court turned to counsel for the defendant and asked if there were any issues which had not been stated to the jury, and, upon 'being orally requested to charge .that “if the jury should find that [the defendant] authorized the charging of any particular goods, and should also find that he afterward paid for those,goods, then the jury should uot find a verdict against him.” The court instructed the jury, “If you find that there was any part of the goods charged in that account by the authority of S. L. Nevil, and he paid for whatever he authorized to be charged to him, of course your verdict in that case would be for the defendant.” The 11th ground excepts to these instructions, and the defendant contends that the charge was error in failing to state properly the contention that the defendant had paid for all goods which he had authorized to be sold; by a payment of $62.49 on the account, and that the court should have charged that if the jury believed this, they should find for the defendant. The account sued on properly credited this alleged payment, and the plaintiffs sought no recovery therefor. The instructions preceding the colloquy with counsel for the defendant not only presented to the jury the issue as to whether the defendant had authorized the sale of all of the goods, but, both at the beginning of the quoted language and in the same connection, before defining preponderance of the evidence, submitted the question as to whether he was resppnsible for “any part” of the goods. If the language used could be deemed in any wise ambiguous, the court, following the colloquy with counsel, charged the defendant’s specific contention that he had authorized only the portion of the goods paid for. The exception taken is without merit.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    14713, 14735.
    Carroll v. Muller et al.

   Bell, J.

1. If there has been no service of a suit nor a waiver thereof, the necessity of service is not dispensed with by the mere fact that the defendant may in some way learn of the filing of the suit. Davis v. Comer, 108 Ga. 117, 119 (33 S. E. 852, 75 Am. St. Rep. 33). On the other hand, if there has been a legal substituted service, as by leaving the process at the defendant’s residence, 'it will be immaterial whether the defendant ever had actual knowledge thereof. Cooper v. Fourth National Bank, 26 Ga. App. 44; 47 (105 S. E. 375), and eases cited. But no case can proceed without service upon the defendant in one of the modes prescribed .by .law,' unless service is waived. •

2. The service of a suit in the superior courts must be by the sheriff or his deputy, and, as to a defendant not a 'corporation, must be personal or by leaving a copy at the defendant’s residence. Civil Code (1910), § 5563. " '

3. In this ease an entry of service was made by the deputy sheriff :of Fulton county, reciting that he had served the defendant “by. leaving-a-copy of the within writ and process at his most notorious place of abode in this county.” The entry was traversed, and upon a trial before the court, acting both as judge and jury, a judgment having been rendered sustaining the traverse and dismissing the suit for want of service, the plaintiff excepted. The deputy sheriff who made the entry, sworn as a witness for the defendant, testified as follows': “Having found nobody there [at the defendant’s residence], I went across the street, where I learnt his [defendant’s] father-in-law or mother-in-law lived, and saw a lady and asked her to come across there and receive the service, and she did. She told me she was his sister-in-law, and she came across the street to this place, and I handed her the copy, and I left the copy with her, and she took the copy and we left the place together (italics ours). She was not standing in the street or out in the yard; she come on the steps. I didn’t go in the house, but I handed her this paper when she came across the street. This lady and I left there together. . . She came over on the piazza. I left the papers with her. . . She took them; then I made this return.” There was no other testimony upon the manner of the service. Held: Assuming (without deciding) that the entry was sufficient in form to meet the requirements of the section of the code mentioned above as to substitute service, the evidence conclusively shows that there was no service by “leaving a copy at defendant’s residence.” Where the sheriff or his deputy to whom has been delivered a petition and process for service goes to the defendant’s residence, and, finding no one at home, calls thereto from some other place a person who does not abide there either permanently or temporarily, to whom he delivers the process, but who immediately brings the process away in- company with the sheriff, there is a failure to make service. The process in this case, instead of being left by the sheriff at the defendant’s residence, left the residence with him, or at least at the same time. It came away as he did. The court did not err upon the evidence in sustaining the traverse.

Decided November 23, 1923.

Action for damages; from Fulton superior court—Judge Ellis. April 27, 1923.

J. Caleb Clarice, Westmoreland & Smith, for plaintiff.

Reuben R. & Loihry Arnold, Colquitt & Conyers, Hendrix & Buchanan, for defendants.

Judgment affirmed on main hill of exceptions; cross-hill dismissed.

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


text:
    14737.
    Daniell & Beutell v. McRee.
   Bell, J.

This was an action for the recovery of the reasonable value of services of the plaintiffs as architects, alleged to have been performed for and accepted by the defendant, who denied that the services had been authorized or accepted to the extent claimed, and contested also the reasonableness of the charge. The value of the services was not fixed by any contract. A verdict was found for the plaintiffs, but for a sum less than the amount sued for. A certiorari sued out by the defendant was*granted, and the plaintiffs excepted. Held:

Decided November 23, 1923.

Certiorari; from Fulton superior court—Judge Humphries. May 30, 1923.

Herman B. Bvins, for plaintiffs.

George L. Bell Jr., for defendant.

1. Questions of value are peculiarly for the determination of the jury where there is any data in evidence upon which they may legitimately exercise their “own knowledge and ideas.” Baker v. Richmond City Mill Works, 105 Ga. 225 (2) (31 S. E. 426). The sum sued for was unliquidated. “ While witnesses could be properly called to give their opinion as to the value of the services of the plaintiff, the jury were not bound by the opinion of such witnesses.” Jennings v. Stripling, 127 Ga. 778 (3), 784 (56 S. E. 1026). See also Finleyson v. International Harvester Co., 138 Ga. 247 (2) (75 S. E. 103); Shaw v. Probasco, 139 Ga. 481 (1) (77 S. E. 577). It follows that the verdict was not demanded.

2. The action of the judge of the superior court sustaining the certiorari has the effect of granting a new trial, and, this being the first grant of a new trial and the evidence not having demanded the verdict, under the repeated rulings of the Supreme Court and of this court the grant of the certiorari will not be set aside. Murray v. Stribling, 28 Ga. App. 211 (110 S. E. 761); McCall v. Stubbs, 28 Ga. App. 308 (111 S. E. 63); Darley v. Williams, 28 Ga. App. 323 (111 S. E. 83). See also Maynard v. American Ry. Express Co., 29 Ga. App. 329 (115 S. E. 35).

Judgment affirmed.

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


text:
    14240.
    Nipper et al. v. Griffin Mercantile Co.
   Bell, J.

1. While it is well settled that in order to invalidate a written contract on the ground of fraud, the fraud must have resulted in injury or damage, yet where, against an action upon a promissory note, the maker defends upon the ground that he was induced to execute and deliver it by misrepresentation of material facts, knowingly made by the payee in order to induce the making of the note, by which the maker was defrauded and deceived, the case is not one of fraud without damage, but the damage exists in the execution and delivery of the note by which the maker assumes an obligation. Holliday v. Poole, 77 Ga. 159; House v. Martin, 125 Ga. 642 (1) (54 S. E. 545).

_2. Fraud voids all contracts. Civil Code (1910), § 4254. A contract may be rescinded at the instance of the party defrauded; but in order to rescind he must promptly, upon discovery of the fraud, restore or offer to restore to the other whatever he has received by virtue of the contract, if it be of any value. Civil Code (1910), § 4305.

3. A misrepresentation by the holder of a mortgage executed by a third person upon personalty, that the property is free of other incumbrances, knowingly made for the purpose of inducing another to purchase the mortgage and to pay for the same with a promissory note, is a misrepresentation of such a material fact as will authorize the latter, after executing the note, to rescind the transaction on discovery of the fraud, if he relied upon the representation and was induced thereby to execute the note, provided he acts promptly and restores or offers to restore to the other party the mortgage of the third person for the purchase-price of which the note was given. Marietta Furniture Co. v. Beekwith, 4 Ga. App. 245 (3) (61 S. E. 149). See 12 R. C. L. §§ 39, 51, 57, pp. 273, 287, 293.

Decided November 27, 1923.

Complaint; from Fayette superior court—Judge Searcy. December 30, 1922.

W. B. Hollingsworth, Culpepper & Murphy, for plaintiffs in error.

Reagan & Reagan, contra.

4. Where a contract is thus rescinded, it is abrogated not partially but completely. The rights of the parties are to be determined by the standard of the original status, and not by the rescinded contract with the effect of the fraud repaired. A contract once so rescinded cannot be revived by the subsequent action alone of the party perpetrating the fraud in making true what he represented to be true before the contract was made. Lytle v. Scottish American Mortgage Co., 122 Ga. 458 (3), 462 (50 S. E. 402); Enterprise Distributing Corp. v. Zalkin, 154 Ga. 97 (5) (113 S. E. 409) ; 2 Black on Rescission & Cancellation, §§ 704, 706; 6 R. C. L. 942, § 323.

5. In the instant ease, if the fraud existed as claimed, the plaintiff could not escape its consequences by showing at the trial that, subsequent to the rescission and offer to restore, it paid off the prior incumbrance.

6. It was not necessary to the defense to show that the prior mortgage had been enforced. Southwestern Railroad v. Papot, 67 Ga. 675 (5). See also French v. State, 4 Ga. App. 462 (61 S. E. 836).

7. Applying the foregoing principles to the evidence, a verdict for the plaintiff was not demanded, and it was error to direct it.

Judgment reversed.

Jenldns, P. J., and Stephens, J., concur.


author: Bekd, J.

text:
    14268, 14269.
    WILLIAMS v. ATLANTA NATIONAL BANK; and vice versa.

    1. If the judge’s certificate to the bill of exceptions unqualifiedly verifies it, a further statement in the certificate which does not contradict any of the recitals of the bill of exceptions is not cause for dismissing the bill.
    2. Joint obligors may be sued together in the county of the residence of either. Where a suit is brought upon a promissory note against two defendants appearing to be joint obligors, and it is alleged that one of them is a resident of the county in which the suit is filed and that the other is a resident of another named county of this State, a plea to the jurisdiction by the latter, that his residence is not as the plaintiff alleges, but in a third county named, fails to show a want of jurisdiction and is properly stricken for insufficiency.
    3. Such a plea is not aided by the averment that the resident defendant did not execute the note and has never ratified its execution by any one else. The question of the liability of the resident defendant should be determined on the final trial of the case and not on a dilatory plea.
    4. When the record shows what purports to be a valid return of service, and it is necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the objection can be made only by plea in abatement (if before judgment), and in connection therewith the sheriff’s return must be duly traversed.

      (a) In the absence of a traverse of the entry, the attack upon the legality of the service in this ease was unavailing.
    5. While it is true, regardless of the rulings made above, that when the court in such a case directs a verdict against the plaintiff'and in favor of the plea of non est factum of the resident defendant the court should not proceed further as to the non-resident defendant, in the absence of a waiver of jurisdiction, but should dismiss the case as to him for want of jurisdiction (and so irrespective of whether such verdict was properly directed), yet this general rule is not applicable here, for the record discloses the equivalent of a waiver of jurisdiction,—that is, an estoppel to set up want of jurisdiction.

      [a) Where a person signs the name of another to a note purportedly as his joint obligor, and puts the note into circulation as a commercial paper, ne will be estopped to assert, in an action thereon by an innocent holder for value, that he did not have the authority to sign the name of such other party to the note, and that as between Jiim and the holder the case is not one of co-obligors, suable in the county of the residence of either of the signatory parties. The court properly directed the verdict in favor of the plaintiff and against the non-resident defendant, notwithstanding the direction in favor of the resident defendant.
    6. Where the execution of a note is denied by a plea of non est factum, the note will not be received in evidence until some extrinsic proof of its execution has been submitted. Slight evidence is sufficient to lay the foundation for its admission.

      (а) Where in such a case it is shown by the plaintiff that the defendant who filed the plea of non est factum had on several occasions stated to the plaintiff’s attorney that as soon as he could see his brother the note would be arranged, and that always until the filing, of the suit he promised to “arrange” or renew it, the plaintiff was entitled to have the note admitted in evidence.
    (б) The error in excluding the note entered into and rendered erroneous the subsequent action of the court in directing a verdict against the plaintiff and in favor of the plea.
    (c) Even if the court had been right in excluding the note, it would have been improper to direct a verdict in favor of the plea merely because of the failure of the plaintiff to supply sufficient evidence to authorize the introduction of the note. In that ease the plaintiff should have been nonsuited.
    Decided November 27, 1923.
    Complaint; from city court of Carrollton—Judge Hood. December 12, 1922.
    The Atlanta National Bank filed a suit returnable to the June term, 1921, of the city court of Carrollton, upon a joint and several promissory note purporting to have been signed by Ira W. Williams and Lee J. Williams, alleging that Lee J. Williams was a resident of the county of the suit, and that Ira W. Williams was a resident of Fulton county. The plaintiff is a holder by indorsement. On May 18, 1921, an acknowledgment of service was entered upon the petition, signed apparently by both defendants. It seems, however, that this acknowledgment was made by Lee J. Williams, both for himself and for Ira W. Williams, and that the plaintiff, in order to be sure of service upon the latter, procured an order at the return term for the issuance of a second original, with process directed to the sheriff of Fulton county, for service upon this defendant, as to whom it was ordered that the September term, 1921, be the appearance term. At this term no return of the process had been made, and a second order was passed, prolonging appearance until the December term. In the meantime, on October 3, a return had been made upon the second original, as follows: “Georgia, Fulton county: I have this day served the defendant Ira W. Williams personally with a copy of the within petition and process. This October 3, 1921. Lane Mitchell, Deputy Sheriff.” The defendant so served then made a special appearance at the December term, for the purpose of pleading to the jurisdiction of the court, in which, after amendment, it was averred that he was not at the time of the filing of the suit a resident of Fulton county, but a resident of the county of Thomas; that the superior court of Thomas county and the city court of Thomasville “have jurisdiction as to him and his property, and that the city court of Carrollton has not jurisdiction; nor is service upon him in Fulton county legal and proper.”
    He pleaded further that Lee J. Williams did not execute the note and did not authorize the same to be executed, but “that said note was executed by this defendant, and his act and deed.” Hpon this allegation it is urged that the case was not one of joint obligors.

      Neither the sheriff nor his deputy of Fulton county was made a party to this proceeding, and it was stricken on motion. The court struck also a traverse by the same defendant to the acknowledgment of service, attacking the authority of Lee J. Williams to make the acknowledgment in behalf of Ira W. Williams. This so-called traverse filed on the date of the trial, December 12, 1922, is alleged to have been made at the first term after notice. The plaintiff in error takes the view that the court struck this plea because it was not filed earlier.
    Lee J. Williams at the appearance term filed a plea of non est factum in his own behalf. The court held upon the trial that the plaintiff did not carry the burden of proving execution, and refused to admit the note in evidence upon this issue. Verdicts were thereupon directed in favor of the plea of non est factum filed by Lee J. Williams, but in favor of the plaintiff against Ira W. Williams for the amount sued for. Ira W. Williams brought a bill of exceptions complaining of all of the rulings hereinbefore stated except the direction of a verdict in favor of the plea of Lee J. Williams. To this ruling exceptions are brought by the plaintiff, in what it has termed a cross-bill. Against the bill of exceptions first mentioned there has been filed a motion to dismiss.

      S. Holderness, Smith & Millican, J. Mallory Hunt, for Williams.

      Willis Smith, Boykin & Boykin, contra.
   Bekd, J.

(After stating the foregoing facts.)

1.

The bill of exceptions brought by Ira W. Williams contained the following recital of facts:- “Plaintiff’s attorneys also contend that Ira W. Williams acknowledged service upon said petition .as appears on said petition, bearing date of the 18th day of May,' 1921. To this alleged acknowledgment, by permission of the court, Ira W. Williams filed his traverse, setting up that he had not acknowledged service and had not authorized any one to do so for him; that the alleged acknowledgment was in the handwriting of Lee J. Williams, and that he had not authorized Lee J. Williams to so acknowledge such service, and he had not ratified the same, and he asked that Lee J. Williams be made a party to said traverse, and this traverse was made at the first term after said alleged acknowledgment. This traverse was allowed and ordered filed and served upon Lee J. Williams, who was made a party by order of court. After argument of counsel both pleas to the jurisdiction and upon the traverse of the alleged acknowledgment of service and before said traverse and order of court could be served upon Lee J. Williams, and on motion of plaintiff, the court dismissed said traverse and struck the same, ruling that the same had to be filed at the first term, regardless of whether Ira W. Williams had notice or not; that said traverse was bad, unless so filed, and under the circumstances it would make no difference whether Lee J. Williams was served or not.” The certificate to the bill of exceptions is in the usual form, but preceding his signature the judge adds the following: “No point was made before the court that the traverse had not been served on Lee J. Williams, and Lee J. Williams was present and represented by attorneys.”

It is contended that this statement is a qualification of the judge’s certificate of the truth of the bill, and that for this reason the bill of exceptions should be dismissed. We cannot concur in this view. The bill of exceptions recites in effect that the judge held that the traverse to the acknowledgment of service was without merit, regardless of whether Lee J. Williams had been served with the traverse, and for that reason dismissed it instanter. It is not assigned that any party contended that the judge should not pass upon the sufficiency of the traverse until Lee J. Williams had been served therewith. So that the statement that “no point was made before the court that the traverse had not been served on Lee J. Williams” in no way contradicts any of the recitals of the bill of exceptions, which are unqualifiedly certified as true, and the motion to dismiss is therefore denied. Scott v. Whipple, 116 Ga. 211 (2) (42 S. E. 519); Stilwell v. Watkins, 135 Ga. 149 (2) (68 S. E. 1114); Davis v. Smith, 7 Ga. App. 192 (3) (66 S. E. 401); Lane v. State, 9 Ga. App. 294 (1) (70 S. E. 1118).

This ruling is not in conflict with the ruling in Hawkins v. 'Mayor &c. of Americas, 102 Ga. 786 (30 S. E. 519), J arriel -v. Jarriel, 115 Ga. 23 (41 S. E. 262), Love v. Love, 146 Ga. .161, 'Watkins v. State, 29 Ga. App.:320 (114 S.'E. 915), or with any other decision of 'this or the Supreme Court, of which we are aware, 'to the effect that a bill of exceptions should be dismissed where it is not verified unqualifiedly and in whole by the judge’s certificate.

-Irrespective of whether Ira W. Williams should be estopped .to deny his authority in signing the name of Lee'J, Williams-to the note, the plea to the jurisdiction was altogether insufficient. TJpon the face of the note it appears,that the defendants are joint and several makers. Joint obligors may be sued together in the county of the residence of either. Civil Code (1910), § 6541. The plaintiff alleged that Ira W. Williams was a resident of the county of Fulton. This defendant pleaded that he was not a resident of Fulton county, but of Thomas county. The petition alleges that Lee J. Williams resided in the county of Carroll, in which the action was brought. If they are joint obligors the courts of Carroll county would have jurisdiction over the person of Ira W. Williams, whether he resided in the county of Fulton or the county of Thomas. His plea failed to show that the court was without jurisdiction over him, and thus far was without merit. Maddox v. Brooks, 17 Ga. App. 644 (1) (87 S. E. 911).

Furthermore, we do not think that it was aided by the plea of non est factum which he entered as to Lee J. Williams. Regardless of whether such a plea is - personal and could be made only by the latter (see Civil Code of 1910, § 5676), the question of their joint liability should be determined on the final trial, and not on a dilatory plea. In the case of Central of Georgia Ry. Co. v. Brown, 113 Ga. 414 (3) (38 S. E. 989, 84 Am. St. Rep. 250), the suit was brought in the county of Bibb for a tort alleged to have been committed in that county. The defendant filed a plea to the jurisdiction, claiming that the cause of action, if existing, arose in the county of Washington, and seems to have shown that this was true beyond dispute; but it was alleged in the petition that the tort was committed jointly by the defendant’s conductor and one McCowan, who, it was averred, resided in Bibb. It was held that the suit could be brought in the county of Bibb, and also that “In trying the plea to the jurisdiction of the court it was not proper to go into the merits of the case. The railroad company sought to show that McCowan was not liable to the plaintiff, and that the courts of Bibb county had, therefore, no jurisdiction of the company. We think that this is a matter for determination on the final trial of the case.” See Warren v. Rushing, 144 Ga. 612 (1) (87 S. E. 775).

But it is contended that the plea to the jurisdiction, in alleging that Ira W. Williams was a resident not of the county of Fulton but of the county of Thomas, would show that the sheriff or his deputy of the county of Fulton was without authority to serve the process. It was charged that the service upon him in Fulton county was not legal or proper. It is replied by the attorneys for the plaintiff bank that, in view of the record, no question in regard to the legality of the service can be raised without a traverse of the entry as made by the deputy sheriff of Fulton county, with that officer and the sheriff made parties. We think that this point is well taken. While the plaintiff in error does not dispute that he received from the deputy sheriff of Fulton county a copy of the petition and process, he does deny that the service was legal, and this fact alone makes it necessary that he traverse the entry, it prima facie appearing from the record that the service was valid and regular, based upon a proper process. The petition alleged that the defendant was a resident of the county of Fulton. Process was directed to the sheriff and his deputies of that county. The deputy returned that he had served the defendant in person. This implied that the service was legal. It also implied that the defendant was a resident of that county, for if he were not, then the service upon him by that officer was unauthorized. Strauss v. Owens, 6 Ga. App. 415 (65 S. E. 161); Caldwell v. Alexander Seed Co., 17 Ga. App. 571 (1) (87 S. E. 843); Beasley v. Smith, 144 Gar 377 (2) (87 S. E. 293); Civil Code (1910), § 5567. No defect in the service appearing in the record, the presumptions are in favor of its validity.

If the entry had recited service by leaving a copy of the petition and process at the defendant’s residence, then unquestionably a traverse of the return would have been necessary. The defendant could not have successfully denied that he resided in Fulton county, without traversing the officer’s return and making him a party. Sindall v. Thacker, 56 Ga. 50 (1); Kimsey v. Macon Lumber Co., 136 Ga. 369 (71 S. E. 675). The return in the instant case had the effect of reporting to the court from whence the process issued: “I have found Ira W. Williams to reside in the county of Fulton, and I have served him in person,” or “I have this day served Ira W. Williams in person, as a resident of the county of Fulton, with a copy of the within petition and process.” Since the officer of Fulton county could not rightly have made the service unless in truth Mr. Williams was a resident of that county, it necessarily follows that his residence in Fulton is implied in the return. It may be, of course, perfectly true, as alleged in the plea, that he resided in the county of Thomas. We are referring solely to the necessity of traversing the officer’s return before he could be let in to his proof of that fact.

In the case of Bell v. New Orleans &c. R. Co., 2 Ga. App. 812 (59 S. E. 102), the return of service was as follows: “Served the defendant New Orleans and North Eastern Eailroad Company, a corporation, by serving Eay Knight, its commercial agent, by leaving a copy of the within writ and process with him in person at the office and place of doing business of said corporation in Eulton county, Georgia. This January 30th, 1906.” The defendant filed a special appearance, disputing the legality of the service. It did not deny that Eay Knight was its commercial agent, or that he was served in the manner recited in the return. It was contended merely that the scope of Knight’s agency was not such as to make service upon him valid upon the company. The deputy sheriff was made a party to the traverse, but not so as to the sheriff. It was held that the traverse was necessary, and that it was insufficient because of the omission to make the sheriff a party, the court saying : “When the record shows a valid return of service, and it is necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the objection can be made only by plea in abatement (if before judgment), and in connection therewith the sheriff’s return must be duly traversed.” Georgia Railway & Power Co. v. Davis, 14 Ga. App. 790 (2) (82 S. E. 387).

“Prima facie, at least, the return of an officer imports verity; and when there is no traverse of a sheriff’s entry of service, any question as to whether the defendant was legally served may be disregarded.” Citizens Bank of Bainbridge v. Fort, 15 Ga. App. 427 (1), 429 (83 S. E. 678); Southern States Phosphate Co. v. Clark, 19 Ga. App. 376 (1), 380 (91 S. E. 573); Maund v. Keating, 55 Ga. 396; Hartsfield v. Morris, 89 Ga. 254 (15 S. E. 363).

The defendant’s special appearance was altogether without merit.

This case is unlike that of Frank Adams Electric Co. v. Witman, 16 Ga. App. 574 (85 S. E. 819). In that case the clerk of the court had omitted to annex to the petition any process requiring the appearance of the defendant who attacked the return. It was therefore shown by the record that the service was illegal and void-

The defendant Ira W. Williams being bound by the untraversed return of service, it is immaterial whether the acknowledgment of service made in his behalf by Lee J. Williams was valid or not. If the court erred in striking the attack upon this acknowledgment, the error was harmless, and no decision is necessary upon the point.

After disposing of the preliminary pleas or motions of Ira W. Williams the case proceeded to a trial upon its merits, and resulted in the direction of a verdict in favor of the plea of non est factum filed by Lee J. Williams, and in favor of the plaintiff and against the defendant Ira W. Williams for the amount sued for. We think that when the verdict was directed in favor of the plea of non est factum of Lee J. Williams, jurisdiction over the person of Ira W. Williams, who did not reside in Carroll county, would thereby have been lost, and that the direction of a verdict and judgment against him would have been erroneous, unless there was 'a waiver of jurisdiction, or the equivalent. A proper disposition would ordinarily have been to dismiss the case as against this defendant for want of jurisdiction. Lester v. Mathews, 56 Ga. 656 (4); Fullington v. Killen, 65 Ga. 575 (3); Rounsaville v. McGinnis, 93 Ga. 579 (3) (31 S. E. 133); Hamilton v. DuPre, 111 Ga. 819 (3) (35 S. E. 684); Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (3), (38 S. E. 989, 84 Am. St. Rep. 250); Ross v. Battle, 117 Ga. 877 (2) (45 S. E. 352); Warren v. Rushing, 144 Ga. 613 (87 S. E. 775); Maddox v. Brooks, 17 Ga. App. 644 (2) (87 S. E. 911). But is this rule applicable to the unusual facts of this case ? The defendant who invokes it solemnly declares under oath that he is responsible for the name of the other appearing upon the note,—that he placed it there himself,—but in doing so he was acting without authority. By this statement deposited in the record he is bound, perhaps not conclusively, since the plea was stricken (Mims v. Jones, 135 Ga. 541 (1), 544, 69 S. E. 824), but certainly to the extent that facts therein alleged may be taken as true in the absence of retraction and denial. Lydia Pinkham Co. v. Gibbs, 108 Ga. 138 (1) (33 S. E. 945); Civil Code (1910), § 5775. He has thus put into circulation as a commercial paper a note purporting to be the joint obligation of himself and another, which presumably is in the hands of an innocent holder. Can he assert his want of authority against any one who did not know of it and has acted on the assumption that the signature was genuine ? A man cannot thus take advantage of his own wrong. He is estopped from declaring that the case is not one of joint obligors as between himself and the plaintiff. All of the elements of estoppel are present. Not one is lacking. Tinsley v. Rice, 105 Ga. 285, 290 (31 S. E. 174). “The assent of the agent is implied whenever he acts or assumes to act on behalf of another person, and after having so acted or assumed to act, he is not permitted, in an action by such person, to deny that the agency in fact existed, or that he had acted on such person’s behalf.” Bowstead on Agency (6th ed.), 15. Compare Civil Code (1910), § 3584. The principle as quoted would prevent the assertion of this contention as against Lee J. Williams, on whose behalf Ira W. Williams assumed to act, and we think it would be applicable as well in favor of the holder of the note. Whether the same would be true if the note (here a sealed instrument) had shown upon its face that the name had been signed by an agent is not a question in the case.. The paper appeared to be signed by each of the alleged makers in person.

The scope of the estoppel is such as to render it the equivalent of a waiver of jurisdiction. Jurisdiction of the person may of course be waived. Therefore, the court committed no error in directing the verdict in favor of the plaintiff against the nonresident defendant, notwithstanding a verdict was at the same time directed in favor of the resident defendant.

The sixth headnote has reference to the assignments in the bill of exceptions brought by the plaintiff in the court below and termed by counsel a cross-bill. We think that it is an independent bill, and shall so dispose of it, although, the cases being kindred, we are considering them together in a single opinion.

The plaintiff undertook to carry the burden of proving as to Lee J. Williams the execution of the note sued upon, which the law placed upon it upon the filing of the plea of non est factum. Among other things, Harvey Entrekin testified that after January 3, in the year 1921, he worked in the office of Boykin & Boykin, the attorneys for the plaintiff, and that in the early part of 1921, in the office of his employers, he heard Lee J. Williams talking to one of the Messrs. Boykin about the note; that Mr. Boykin was “wanting him to satisfy the note for the bank, and there was some argument about it, but he finally agreed with Mr. Boykin that as soon as he could get his brother down here, he would arrange the whole matter. He never said that he signed that note. I don’t remember that he said anything about that. . . He said as .soon as he could get his brother Ira down here he would arrange the whole matter. . . I heard him say he would get his brother down here and ‘We will arrange it.’ He never made any complaint of not signing them in my presence. ”

Mr. B. F. Boykin testified as follows: “On December 5th or 7th—I have forgotten the date—Judge Boop, Mr. Stewart and myself went into the bank there to help collect these notes, and at the time we went in there this note sued on, signed by Ira W. and Lee J. Williams, with two or three more signed by Ira W. and Lee J. Williams, and one signed Ira and Felix,—on this particular note, we made an effort to get in touch with Lee Williams, and Ira Williams, and Lee Williams came down and promised to get his brother Ira down here and settle this note. In January he came to my office about a loan he was putting through, and he promised to get his brother down here and settle this note, and finally Ira and Lee came and they promised to settle this note. We have had a number of conversations with Lee Williams in the office and he promised to pay them, as he said, as soon as he could get Ira Williams down they would arrange them. When we sued this case Lee Williams acknowledged service in my office, and he said he would acknowledge service for Ira, that what one of them’ did the other would ratify it, and that it would save costs. He did not say anything at anytime before then about not signing this note. IJp until the time he acknowledged service he did not claim that the note was not signed by him and not his act and deed. I expect I saw him one hali dozen times in regard to this note, and every time he said he would get Ira down here and arrange it. Every conversation Was in regard to the note sued on and other notes sued upon. After suit was brought he did tell me that he did not sign the note sued on. He said Ira signed this note and got the money and that he did not sign it. He said that Ira and Newt Spence had some dealings about it. That was his claim after suit was brought. Hp until that time he always promised to renew it. At the time this acknowledgment of service was made I told Mr. Williams that I had three or four suits prepared, and that if he would acknowledge service it would save cost of sheriff, and he said he would do it. I told him it would save cost of sheriff if he would sign for Ira. He seemed to think it would be satisfactory to Ira and I did too. Afterwards I had order passed by the court to have Ira served, because I feared we would have trouble about it, and that it would be the best thing to- do to have him served. I could not tell when I got possession of the note sued on. Any time after Mr. Lyle was appointed liquidating agent, anything that I needed I could go and get. Mr. Lyle had all the notes, the notes that belonged to the Atlanta National Bank, transferee, and others.”

The foregoing evidence, in our opinion, entitled the plaintiff to the introduction of the note. See McLendon v. Shackleford, 32 Ga. 474.

“Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission.” Civil Code (1910), § 5782; Holston v. Southern Railway Co., 116 Ga. 656 (2) (43 S. E. 29); Hening v. Glanton, 27 Ga. App. 339 (2) (108 S. E. 256); Cason v. Duke, 28 Ga. App. 170 (2) (110 S. E. 684). “Where the execution of a note is denied by a plea of non est factum, the note will not be received in evidence until some extrinsic evidence of its execution has been submitted. Slight evidence is sufficient to lay the foundation for its admission, but its sufficiency is for determination by the court.” Patton v. Bank of LaFayette, 124 Ga. 965 (5) (53 S. E. 664, 5 L. R. A. (N. S.) 592, 4 Ann. Cas. 639); Emory v. Smith, 54 Ga. 273 (2).

There was no evidence whatsoever by the defendant, as the plaintiff, under the ruling of the court, was never able to shift the burden of the evidence. Of course, if the court had seen fit to admit the note in evidence, then the plaintiff would have had the burden of satisfying the jury by a preponderance of the evidence of the execution of the note as alleged. “Where a verified plea of non est factum has been filed, although slight evidence as to the execution of the paper in question may prevent a nonsuit and carry the case to the jury, yet when this slight evidence has been met by evidence to the contrary, then the burden is upon the plaintiff to prove the execution of the paper by a preponderance of the evidence.” Bank of Norwood v. Chapman, 19 Ga. App. 709 (6), 712 (92 S. E. 225, 227).

We do not overlook the fact that in the testimony of Mr. Boykin it is stated that the defendant, after the suit was filed, told him that .he did not execute the note. It appears there had been several previous conversations in which Mr. Williams had promised to arrange the note, or renew it, without any statement as to whether he did or did not execute it. If there had been but one conversation, and in that he had denied the execution of the note, it may be that the plaintiff could not use against him his promise to arrange or renew the note without at the same time giving him the benefit of the denial of its execution made in the same connection, so that the effect of the admission would have been negatived by the contemporaneous denial or explanation. But this is not the ease as presented by the evidence. When he was presented with the note with a demand for payment, his failure to repudiate the genuineness of his signature “was evidence in the nature of an admission which might be considered as bearing upon the question whether he assumed the signature as his own, but it was not conclusive. Greenfield Bank v. Crafts, 2 Allen 269, 273; Harrod v. McDaniels, 126 Mass. 413.” Traders National Bank v. Rogers, 167 Mass. 315 (45 N. E. 923, 36 L. R. A. 539, 543, 57 Am. St. Rep. 458). We speak solely of the execution by this defendant himself, and not of the authority of another to execute for him, nor of ratification. The note is under seal, and its execution by one on behalf of another could not be binding upon the latter unless duly authorized or ratified by him under seal. United Leather Co. v. Proudfit, 151 Ga. 403 (107 S. E. 327).

Even if the evidence had been insufficient to authorize the introduction of the note, this would not have warranted a direction of a verdict in favor of the plea. In that case a proper disposition would have been a nonsuit. We hold, however, that in view of the plaintiff’s evidence the note was improperly excluded. This rendered erroneous the subsequent direction of the verdict in favor of the plea.

Judgment affirmed on the main hill of exceptions; reversed on the cross-hill.

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


text:
    14270, 14271.
    Williams v. Carrollton Bank, for use, etc.; and vice versa.

    Decided November 27, 1923.
    Complaint; from city court of Carrollton—Judge Hood. December 12, 1922.

      •8. Holderness, J. Mallory Hunt, Smith & Millican, for Williams.

      Willis Smith, Boykin & Boykin, contra.
   Bell, J.

These cases are controlled by tbe decision in Williams v. Atlanta National Bank, ante, 212.

Judgment affirmed on the main hill of exceptions; reversed on the cross-hill.

Jenkins, P. J., and Stephens, J., conau/r.


text:
    14272, 14273.
    Williams v. Savannah Bank & Trust Co.; and vice versa.

    Decided November 27, 1923.
    Complaint; from city court of Carrollton—Judge Hood. December 12, 1922.

      8. Holderness, J. M. Hunt, Smith & Millican, for Williams.

      Willis Smith, Boykin & Boykin, contra.
   Bell, J.

These cases are controlled by the decision in WilUams v. Atlanta

National Bank, and Atlanta National Bank v. Williams, ante, 212. Judgment affirmed on the main hill of exceptions; reversed on the cross-hill.

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


text:
    14307.
    Carter v. Hart.
   Jenkins, P. J.

A suit on a yearly contract for rent was brought in the municipal court of Macon, the plaintiff claiming a balance due for the last two months covered by the alleged contract. The petition alleged that “petitioner rented to defendant a part of his house known as 735 College street in the city of Macon, for a term beginning October 1st, 1921, and ending September 30th, 1922, at a monthly rental of $42.50.” The judge charged the jury as follows: “Where there is a lease for a year, and the tenant, after the expiration of the lease, by the consent of both parties remains in possession of the premises and continues to pay’rent to the landlord under the terms of the lease, which rent is accepted by the landlord, the law implies a renewal of the lease for another year.” The jury found in favor of the plaintiff, and the defendant excepted to the quoted extract from the charge, on the ground that the evidence for the plaintiff showed an express renewal contract for tlie term of one year, whereas the evidence for the defendant showed an express contract by the month and not by the year, and that there was no question of an implied renewal contract involved. The motion for new trial does not assign error on the ground that the charge was unauthorized by the pleadings. The judge of the municipal court refused the motion for a new trial, and the judge of the superior court overruled a certiorari. Reid:

Decided November 27, 1923.

Certiorari; from Bibb superior court—Judge Malcolm D. Jones. January 5, 1923.

Hall, Grice & Bloch, for plaintiff in error.

Strozier & Beaver, contra.

1. The reasonable meaning of the exception taken to the charge being limited to the complaint that it was unauthorized by the evidence, it is unnecessary to determine whether the language of the pleading is necessarily limited to a claim under an express contract. See Harris v. Cleghorn, 121 Ga. 314, 316 (48 S. E. 959).

2. While there was evidence from the plaintiff from which the jury would have been authorized to believe that upon the expiration of the preceding yearly contract there was an express contract of renewal for twelve months, and while there was evidence from the defendant from which they would have been authorized to believe that there was a new express contract of rental by the month instead of by the year, there was, however, other evidence from which the jury were fully authorized to find that there had been no actual meeting of the minds of the parties with reference to a new express contract of rental, either for twelve months or by the month; and since, under the undisputed evidence, the defendant continued to occupy the premises after the expiration of the preceding yearly term, and continued to pay rent which was accepted by the landlord, the court did not err in giving in charge the principle of law excepted to.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14316.
    Whatley v. Virginia-Carolina Chemical Company.
   Jenkins, P. J.

Defendants were sued upon a promissory note dated May 28, 1919, for the purchase-price of fertilizer, which note included a mortgage whereby one of the signers of the note mortgaged to the payee “ all crops of cotton or corn, or other agricultural products grown or cultivated” by him in the county stated, “for the year 1919.” The instrument was attested by only one witness and was not recorded. The mortgagor defendant filed no defense. The other defendant signing the note filed a plea that he had received no benefit from the fertilizer and signed only as surety, and that the plaintiff, by failing to record the mortgage and thus increasing his risk, had released him from liability. He excepts to the directing of a verdict for the plaintiff. Reid: Judicially recognizing as a matter of public knowledge (Civil Code of 1910, § 5734) that crops of cotton and corn cultivated upon the land of the maker of the mortgage were not mature so as to be detached from the soil at the time of its execution on May 28, 1919, and the subject-matter of the instrument therefore being realty, in order to be entitled to record it must have been attested, by two witnesses, one an official. Farmers Warehouse Co. v. First Nat. Bank, 152 Ga. 262 (2 a) (109 S. E. 900); Civil Code (1910), § 3257. But, in this connection, see Ga. L. 1922, p. 114; Kelly v. Monroe Cotton Mills, 30 Ga. App. 609 (118 S. E. 593). Since the paper in question was attested by only one witness, it was not entitled to record. Under the ruling made in Bacon v. Hanesley, 19 Ga. App. 69 (2) (90 S. E. 1033), the signers of the paper, in order thereafter to plead that it should have been recorded, were charged with the duty of delivering it to the payee so executed as to entitle it to record; and having thus failed, the alleged surety is for this reason estopped from setting up such defense. Determining the case upon this view, that the defendant, even if a surety, could not set up the injury claimed, it is unnecessary to consider whether or not, or by what pleadings, the defendant was entitled to plead and prove the fact of his suretyship, or under what circumstances the failure to record the mortgage, had it been properly witnessed, would have released the surety. See, in this connection, the case of Seymour v. Bank of Thomasville, now pending in the Supreme Court, from this court. The execution of the note not being in dispute, the court did not err in directing a verdict for the plaintiff. (Eor decision in Seymour case, supra, see 157 Ga. 99.)

Decided November 27, 1923.

Complaint; from Taylor superior court—Judge Munro. December 13, 1922.

G. W. Foy, for plaintiff in error.

Montfort & Robinson, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14360.
    Collier v. Moore.
   Bell, J.

1. If on the trial of an action by the vendee for specific performance of a contract for the sale of lands it should be developed that, without fault of the plaintiff but on account of the fact that the vendor does not own the whole interest in the property, a specific performance of the contract is impossible, the defendant cannot complain if the court shall proceed upon a proper prayer to assess damages for a breach of the contract. See Causey v. Causey, 106 Ga. 188 (1), 193 (32 S. E. 138); Lane v. Lodge, 139 Ga. 93 (3 a) (76 S. E. 874); Civil Code (1910), § 4639.

2. If, after notice that another has made a contract for the purchase of land, a third person cuts in, buys it, and takes a conveyance, such person stands in the place of his vendor, and a court of equity, if it would decree a specific performance of the contract against the latter, will render a like decree against the former. Bryant v. Booze, 55 Ga. 438 (1); Grooms v. Grooms, 141 Ga. 478 (2) (81 S. E. 210). The notice need not be actual nor amount to full knowledge. Information, from whatever source derived, which would excite apprehension in an ordinary mind and prompt a person of average prudence to make inquiry, will be sufficient. Bryant v. Booze, supra. The allegations of the amended petition in the instant case invoked against the defendant an application of these principles.

3. The petition prayed for a decree of specific performance of the contract, with an alternative prayer for '“damages for the breach of said contract or for causing a breach thereof,” “in the event the full and complete title to said property cannot or is not for any reason decreed to be in petitioner under his said contract.” Beld: If the defendant in such a case can be made to stand in the place of the plaintiff’s vendor for the purposes of specific performance, it follows that he may in like manner be required to answer in damages in the place of such vendor, where specific performance is impossible; and applying the rulings stated in paragraphs 1 and 2 above, the verdict for damages in favor of the plaintiff in the instant case is not illegal because it developed upon the trial that the plaintiff’s vendors had title to only a seven eighths undivided interest in the land. See, in this connection, Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509 (2) (50 S. E. 353, 69 L. R. A. 90, 106 Am. St. Rep. 137, 2 Ann. Cas. 694).

4. The contract relied upon by the plaintiff was as follows: “July 18, 1919. Received of G. R. Moore one hundred dollars, same being part payment of purchase price of one lot and house on corner of Thomaston street and Murphey avenue, lot containing two acres of land, bounded on north by Albert Bush, west by Thomaston street, south by -Murphey avenue, east by Mr. Hudgins, the purchase price being $1,900.00 cash. [Signed] Priscilla Stroud, Mrs. R. E. Bowman, per Priscilla Stroud.” Though this writing when standing alone may not have been sufficient to identify the property (see, with reference to the. identical contract, Stroud v. Moore, 150 Ga. 656 (2), 104 S. E. 633), the insufficiency was supplied when the defendant amended his answer, admitting that he purchased the property “described in said petition,” and alleging that on a day named he sold and conveyed “said property” to another, and when his deed of conveyance referred to, on being introduced in evidence, specifically located the property in the city of Barnesville, Georgia.

5. “There is no statute in this State requiring the authority to make the memorandum required by the statute of frauds to be in writing, and such authority may be conferred by parol.” Brandon v. Pritchett, 126 Ga. 286 (1) (55 S. E. 241, 7 Ann. Cas. 1093).

6. A ground of a motion for a new trial which complains of the admission of evidence, and which is made the subject of a note by the trial judge that the evidence was admitted subject to instructions that would be given in the charge, and that the charge relating to it should be considered in connection with the objection and the evidence, cannot be considered where the charge referred to in the note is not set out in the ground of the motion. A ground of a motion for a new trial must be complete in itself. Payne v. Lyons, 154 Ga. 501 (1) (114 S. E. 892).

Decided November 27, 1923.

Action for damages; from Lamar superior court—Judge Searcy. January 12, 1923.

James B. Davis, for plaintiff: in error.

Bedding & Lester, contra.

7. If the contract set forth in paragraph 4 above was admissible as original evidence on proof of its execution and of knowledge thereof by the defendant prior to his purchase of the property (and unquestionably it was), it was not error to admit testimony in relation to the antecedent negotiations which culminated in the contract. Compare Brown v. Matthews, 79 Ga. 1 (4); Florida &c. R. Co. v. Varnedoe, 81 Ga. 175 (2) (7 S. E. 129); Sellers v. Page, 127 Ga. 633 (6) (56 S. E. 1011); Civil Code (1910), § 5763.

8. Where a ground of an amendment to a motion for a new trial is approved by the trial judge only with material qualifications, it will not be considered by this court. “If the judge approve the ground of the amendment without more, this is a sufficient approval; but an express approval with certain added qualifications is not an unqualified approval of the ground as true. L. & N. R. Co. v. Ogles, 146 Ga. 20 (90 S. E. 476); Landrum v. Landrum, 145 Ga. 307 (2) (89 S. E. 201). Cf. also Central of Georgia Railway Co. v. Mills, 143 Ga. 47 (84 S. E. 120); Love v. Love, 146 Ga. 160 (91 S. E. 27).” McLean v. Mann, 148 Ga. 114 (1) (95 S. E. 985); Haygood v. Clark Co., 27 Ga. App. 101 (1) (107 S. E. 379). Even if all of the grounds of the amendment to the motion for a new trial are not subject to the rule laid down in the preceding paragraph, none of them show reversible error.

9. There was some evidence to support the verdict, and the court did not err for any reason assigned in overruling the motion for a new trial.

Judgment affirmed.

Jenlvins, P. J., and Stephens, J., eoneur.


author: Jenkins, B. J.

text:
    14367.
    Chatham Motor Company v. Lincoln Motor Company.
   Jenkins, B. J.

1. “The holder of a note is presumed to be such bona fide and for value.” Civil Code (1910), §4288; Rhodes v. Beall, 73 Ga. 641; Wade v. Elliott, 11 Ga. App. 646, 648 (75 S. E. 989); Brantley v. Merchants & Farmers Bank, 22 Ga. App. 667 (97 S. E. 109). The allegation of the petition, that the note sued on, indorsed by the payee, was negotiated by the payee to the plaintiff, was good as against the ground of general demurrer that the petition failed to disclose that' the plaintiff was a bona fide purchaser for value before maturity. No other basis of the general demurrer that “the petition fails to set out any cause of action” appears in the demurrer or the briefs, nor is there any other argument or insistence. With regard to the special demurrers, the brief of plaintiffs in error states that “the special demurrers were met by amendments,” and no argument or .insistence is made thereon.

2. In addition to filing a demurrer to the petition, the defendants filed'a plea denominated by them as a plea in abateifient (see Dougherty v. Bethune, 7 Ga. 90),'setting uj3 that on the date the note sued on was executed by the defendants, the payee was in the hands of receivers appointed by the United States court for the eastern district of Michigan, and therefore was unable to contract, rendering the note sued on null and void, and that “indorsement by said payee could not transfer title to the plaintiff in this case.” The court sustained the plaintiff’s demurrer to this plea. Upon direct bill of exceptions preceding any final judgment the defendants seek to review both the judgment overruling their demurrer to the petition and the judgment striking their plea. The latter judgment could not be reviewed by direct writ of error; and the exceptions thereon, being premature, cannot be considered with the exceptions to the judgment on the demurrer to the petition. Turner v. Camp, 110 Ga. 631 (2), 632 (36 S. E. 76); Amos v. Continental Trust Co., 22 Ga. App. 348 (6) (95 S. E. 1025); Johnson v. Battle, 120 Ga. 649 (48 S. E. 128); Western & Atlantic R. Co. v. Williams, 146 Ga. 27 (90 S. E. 478); City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755); Baldwin v. Lowe, 129 Ga. 711 (59 S. E. 772); English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292). The motion to dismiss the entire writ of error cannot, however, be granted. Hill v. State, 118 Ga. 21, 22, 23 (44 S. E. 820).

Decided November 27, 1923.

Complaint; from city court of Savannah—Judge Freeman. January 22, 1923.

Ulmer & Bright, for plaintiff in error.

Gonneral & Hunter, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14371.
    Hickman v. Toole et al.

   Jenkins, P. J.

Plaintiff, as the invitee of a tenant, sued the landlords for damages on account of alleged personal injuries occasioned by the collapse of the front porch of the rented premises. It appears from the evidence that the house was either in process of being removed, or the work of removal had recently been completed, by an independent contractor, and that the tenant had obtained the consent of the landlord to continue the occupancy during the process of removal. According to the evidence of the defendant landlords, the work of removal had not been accepted, fully completed, or fully paid for at the time of the accident; but according to the contractor’s evidence, the work had at that time been “turned over” to the owners and paid for. According to his evidence, the work had been finished about a week prior to the injury. On cross-examination this witness qualified his testimony to the extent of saying that he would not say for certain but that he thought the jacks had all been removed from under the building prior to the collapse of the porch. The trial judge granted a nonsuit, and the plaintiff excepts. Held:

1. “Members of a tenant’s family, his guests, servants, employees, or others present by his express or implied invitation, stand in his shoes, and are controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair.” Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (118 S. E. 694). The plaintiff, the mother-in-law of the tenant occupying the premises, was his lawful invitee.

Decided November 27, 1923.

Action for damages; from Bibb superior court—Judge M. D. Jones. February 7, 1923.

J. F. Urquhart, R. D. Feagin, E. B. Bell, for plaintiff.

Robert G. Plunkett, for defendants.

2. “Under section 4414 of the Civil Code (1910), an employer is not liable for the negligence of an independent contractor, unless the employment or tortious acts constitute one of the exceptions stated in that section or in section 4415.” Malin v. City Council of Augusta, 29 Ga. App. 393 (115 S. E. 504). But after the contractor has completed the work and turned it over to the owner, and it has been accepted by the owner in discharge of the contract, the general rule is that the responsibility, if any, for maintaining it in its defective condition is shifted to the owner. Richards v. O’Brien, 1 Ga. App. 107, 111 (57 S. E. 907). The evidence fails to indicate any acts on the part of the owner amounting to an assumption of actual control, such as would imply an acceptance of the premises; but the evidence of the contractor that he thought the work had been completed about a week, and his positive testimony that the house had been “turned over” and the work paid for, raised an issue upon the question as to whether or not the contract had been completed and the work accepted. It was therefore error to award a nonsuit in favor of the defendant landlords. 14 R. C. L. 476. Mere proof of the completion of the job, without any other facts in evidence, such as lapse of time, exercise of actual control, or other circumstance implying acceptance would not charge the owner with responsibility.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14380.
    ROUNTREE v. SEABOARD AIR-LINE RAILWAY CO.
    Even though a petition may not set out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed defensive facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit. Evans v. Mills, 119- Qa. 448 (1) (2) (46 S. E. 674). Applying this rule of practice to the facts of the present case, the grant of a nonsuit was error.
    Decided November 27, 1923.
    Action for damages; from Ben Hill superior court—Judge Crum. January 22, 1923.

      George Rountree sued the Seaboard Air-Line Railway Company for damages because of injuries alleged to have been suffered by him while he was in the employment of the company as a section-hand- He alleged: that at the time of the injury he and other section-hands were engaged in repairing the defendant’s railroad-track by removing 'defective cross-ties and supplying their places with new ones; that this was done by prizing or screwing up the steel rails with jacks, and, “after having thus released the pressure on the cross-tie to be removed, the lever of the jack would be turned loose and a pick would be stuck in the end of the cross-tie, by means of which it would be drawn out from under the rails; this was the method being followed and as directed by the section foreman;” that “on the named day petitioner was furnished with a jack which he had not previously used, and which was defective in that it had a broken tooth or cog, which defect was unknown to petitioner and which he could not see from ordinary observation, and his attention was not'called to said defect;” and that while proceeding with his labor as directed by the foreman, “petitioner using the defective jack aforesaid'(without knowledge of said defect), . . and when the rails they [petitioner and other laborers] were prizing up had been prized enough to loosen the cross-tie that was defective and intended to be taken out, petitioner released his hold on the jack-lever, in order to reach and get his pick, so as to stick the same in the end of the cross-tie and pull it out; but, on account of the jack petitioner was using being defective, having a broken or missing tooth or cog, the same did not hold, but when petitioner’s hands released the lever of the jack the weight of the rail caused the defective jack to throw the lever out of its socket violently and forcibly upwards, striking petitioner,” and inflicting upon him certain described injuries. It is alleged: that “the lever of said jack, being the part which struck petitioner, was an iron pipe or tube about three inches in diameter and about five feet long and very heavy; that the defendant was negligent in the following particulars: (a) in furnishing petitioner a defective jack as aforesaid; (5) in. failing to notify petitioner of the defective condition of said jack; (c) in allowing the weight of pressure of the steel rail upon the jack in its defective condition; (d) in allowing and directing petitioner, he being a minor and not skilled in that line of work, to operate and work with a defective jack without special instructions in order to make the work safe for petitioner; (e) in so directing and carrying out the work being done as to cause injury to petitioner.” He alleged his age, earning capacity, etc.
    At the close of the plaintiff’s evidence the court awarded a non-suit, and the case is here upon exceptions to that judgment. The material portions of the plaintiff’s testimony were as follows: “At the time I was hurt I was working [for the defendant], taking out ties and putting in new ones. In doing that work I would just jack up the rail and pull the old cross-ties out with a pick. It was an old jack that I was using that morning. I had been using a new one, and I didn’t go down to the house that morning where they were always locked up, but met'them at the depot, and they changed that new jack for an old one, and there was something the matter with this jack; it was broken, and I didn’t know it. I jacked it up as high as I wanted it and turned loose to reach back for my pick to hit in the tie and pull it out, and it flew up, and one end hit me.” “Some of the catches in that jack that they gave me was broken, but I couldn’t see it; some of the teeth in the jack were broken. The next day after I went down there and tried to go to work I was looking in the tools in the car and 'saw that jack, and I took it and run it up and looked at it, run it up to see what was the matter with it, and there were three of those teeth in it that were broken out; they were broken clean off. If that jack had been sound it wouldn’t have flew up that way and hit me; I had used other jack-screws the same way, and had never had one to fly up and hit me that way; the other jacks I had used had the teeth complete.” “I had been working on the railroad section for about two or' three months, had done that kind of work before, jacking up the steel rail and getting the cross-ties out from under it; that was a regular part of the work I had to do as a section-hand.”- “I had been working with a jack oh. this ■road for two -or three months before I got hurt; hadn’t gotten pretty familiar with it. I got acquainted with how to work it, but I wasn’t no expert. I know how to work it. Couldn’t tell when it was working good or working bad, and never had one to work bad at all before that. I didn’t get the jack that morning, I met them at the depot; they carried the tools down to a house at night and locked them up. I don’t know how many men were working there, more than two or three. They had two jacks. The jack I had been working with was a new one, and I hadn’t worked with this other one until that morning; that Friday morning when I went to work it was a different jack; I noticed that morning that it was a different jack, sort of paid a little attention to it; I didn’t notice it much, didn’t make any examination of it. This accident occurred after dinner, I reckon about two or three o’clock. I had been taking up ties that morning with that jack, had been working with that jack all that day until two or three o’clock in the afternoon. It had been in my possession all that day. I didn’t have any chance to examine it. I was on the job. I couldn’t examine it; it wasn’t my job to do that; don’t know whether I could have examined it if I had wanted to; there was nothing to keep me from it that I know of; I didn’t examine it. I don’t know whether I could have taken hold of it and pulled it out like I did afterwards. The way that jack worked was that you worked a lever up and down, and the stem would come up higher and higher until it got out of the case. You couldn’t take hold of it with your hands and pull it out. You had to work it out. It hasn’t got a reverse lever on it so that you can turn it over and it will fall out; I have never seen one that you could pull out that way. You could work it up and down with the lever so that the stem would come out, and you could see these teeth. When I did examine it on the morning after I was hurt I found that there were three teeth gone; they were broken clear off. I am sure that was the particular jack that I had used, because it had red paint on it. I didn’t notice that the teeth were gone before I was hurt; don’t know whether I could have found it out. With three teeth broken off you could raise that jack by raising the lever up and down. There wasn’t nothing the matter with the stem that I know of. The teeth on the jack are put there to bring it up. It is not true that my hands were sweaty and it slipped. I went to take my hand off to reach and get my pick; it didn’t slip.” “I went back the next morning because I thought maybe I could work a little bit, and I tried to work, but I couldn’t work. I didn’t do anything there the next morning except to examine this jack;, didn’t go there to examine the jack. There were some fellows there when I went there, and they were all sitting there looking at the jacks, and I looked at them too.” “Nobody was with me when I examined the jack; I was just standing up there and looked at it. I ran it up with the knob; just took the knob in my hand and worked it up and down and ran it up. I don’t know how long it took me, a pretty good while, ten or fifteen minutes I reckon. I don’t know how many teeth it had; don’t know how many times I had to work it up and down to get the stem out of the case. It was pretty hard to do. I did it by myself; nobody helped me. I don’t know when that jack was broken; it was an old break, been broke a long time, had gotten rusty where it was broken off. These teeth I have been talking about are what raises the jack when you work it up and down. I hadn’t been working with the jack all the time, hadn’t been working with it but that one day that I got hurt. I hadn’t carried the stem up high enough for me to see the broken teeth. Afterwards I did work it up until these three broken teeth came clear out of the top of the case and I could see them. I worked it up with the nub of the jack.” “I worked it up to where I could see the teeth the next day. I have never used the jack that I got hurt with before. I didn’t use any other jack than that that morning. I started to work with that jack about eleven o’clock, the first time I had used it, the first time I had put it under the steel rail to prize it up. I didn’t start to using that jack until ten or eleven o’clock that morning, and I got hurt about two or three o’clock in the afternoon. Had used that jack that morning. It hadn’t caused me any trouble about throwing the lever before the time I got hurt.” “The broken teeth were not at the top of the jack; were in the middle like. I don’t know how many good teeth were at the top before you come to the broken ones. I never counted them. There were more than three good teeth before you come to the broken ones. I don’t know how many teeth there were in that jack.”
    The plaintiff’s injuries were shown by .the evidence to have been more serious than he at first seemed to think, necessitating ultimately an operation. There was evidence also of his earning capacity.

      Fldridge Quits, Hal Lawson, for plaintiff.

      Whipple & McKenzie, A. J. & J. G. McDonald, for defendant.
   Bell, J.

(After stating the foregoing facts.) It may or may not be that the petition alleges a cause of action (see, on this question, Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 (4), 106 S. E. 609; Lawrenceville Oil Mill v. Walton, 143 Ga. 259 (1), 84 S. E. 584; Civil Code (1910), §§ 3130, 3131); and a cause of action may or may not be shown by the evidence. These questions are not involved. “A nonsuit will not be granted where the plaintiff proves his case as laid. Kelly v. Strouse, 116 Ga. 872 (4 b). This ruling does not lead to the result that it is necessary to submit the case to the jury even though it appears on the plaintiff’s evidence that he is not entitled to recover. Nor is it in conflict with the Civil Code, § 5347 [Civil Code of 1910, § 5942], since that section evidently contemplates a trial upon a petition which sets out a cause of action. Usually there is such a petition, and the plaintiff by proving his case as laid makes out a prima facie right to recover, and it would of course be improper to grant a nonsuit. If he fails to prove what he has thus alleged, or if he actually proves every fact charged, but, on cross-examination or otherwise, disproves his case by establishing beyond doubt the 'existence of other defensive facts which make it manifest that he ought not on the whole evidence to recover, then the Civil Code, § 5347 [supra], declares that ‘a nonsuit will be granted.’ ” “But where the defendant has failed to test the sufficiency of the petition by demurrer at the first term, and the petition sets out no cause of action, it does not follow that proof of the idle allegations therein will compel the court to do a useless thing, and refer to the jury' that which is so vain and nugatory that a judgment on a verdict in favor of the plaintiff would have to be arrested. Civil Code, §§ 5362, 5046 [Civil Code of 1910, §§ 5957, 5629]. In such instances, however, the vice is in the petition rather than in the proof. The remedy is not by motion to nonsuit, which is intended to test the sufficiency of the evidence, but by motion to dismiss, which is aimed at the fatal defect in the pleading. Compare O’Connor v. Brucker, 117 Ga. 451.” Evans v. Josephine Mills, 119 Ga. 448, 450 (46 S. E. 674). See also Atlanta Railway & Bower Co. v. Johnson, 120 Ga. 908 (1) (48 S. E. 389); Duke v. Bibb Mfg. Co., 120 Ga. 1074 (48 S. E. 408).

In the case of Kelly v. Strouse, 116 Ga. 872 (4 b) (43 S. E. 280), it is said that on a motion for a nonsuit “the only question is whether the evidence is sufficient in law to maintain the issue in fact made by the pleadings;” “if the evidence supports the issue made by the pleadings, it is proper to overrule a demurrer to the evidence, or a motion for a nonsuit in the nature of such demurrer, but it is not thereby adjudicated that the pleadings are in law sufficient to authorize a recovery;” “ ‘proving a case as laid5 will prevent a nonsuit.” It would seem, under this rule of practice, that where the sufficiency of a petition is not tested by demurrer or motion to dismiss, and the case is brought here merely upon exceptions to the grant of a nonsuit, all substantive law becomes ‘.inmaterial, and this court, in reviewing the judgment, is confined to a comparison of the evidence with the standards of the suit,— not of the law,—and announcing the result.

Mr. Justice Lumpkin, in Florida Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 420 (71 S. E. 734), speaking for himself, expressed dissatisfaction with the rule of practice above referred to (see also Civil Code of 1910, § 5573), but we have found no decision of the Supreme Court which would warrant this court in declining to observe it in a case like the present, although it seems that this rule is subject to an exception in cases of ejectment (and why not also in trover?) where the property is so indefinitely described that no lawful verdict could be rendered. Williams v. Perry, 136 Ga. 453 (2 a) (71 S. E. 886). To us it seems that in no ease where the petition fails to set forth a cause of action should a nonsuit be reversed because the case was proved as laid, but that the judgment, though incorrect in point of practice, should be affirmed on the idea that the error was harmless. We have not found, however, that the Supreme Court in any case has adopted such a course.

We do not mean by the foregoing to intimate that the plaintiff has not alleged or proved a cause of action. We have intended merely to impress the fact that whether he has or not done either is a question not presented for decision under the record, and that we should determine only whether the allegata corresponds with the probata, provided the plaintiff has not disproved “his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict.” It would seem, therefore, in view of the above, that any discussion of the correlative duties between master and servant would be out of place, unless pertinent under the proviso just quoted.

We have compared the allegations and the evidence, and in our opinion the plaintiff has established his case as laid, without disproving any undisputed defensive facts which would disentitle him to recover. Nevertheless, we will venture a few additional observations. The defect in the jack appears to have been one not discernible by a superficial observation, not obvious in the ordinary use of it, but was “such as would be disclosed only by a positive and careful investigation, and would not be manifest to a person of ordinary intelligence or experience in the line of work in which the servant was engaged.” International Cotton Mills v. Carroll, 22 Ga. App. 26 (1 a) (95 S. E. 472). The missing or broken teeth were not revealed in the ordinary operation of the jack, in the performance of the plaintiffs duties. He testified: “I hadn’t carried the stem up high enough for me to see the broken teeth. Afterwards I did work it up until these three broken teeth came clear up out of the top of the case and I could see them.” This was on the positive inspection which he made on the day following his injury, and which it appears required a special manipulation consuming “ten or fifteen minutes.” “The broken teeth were not at the top of the jack, were in the middle like.” It may be inferred that they were in the middle of the “case.”

“Whether the plaintiff had the same opportunity as the defendant, of knowing of the defects alleged and proved, would depend upon the character of such defects,—whether they were latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be held bound to discover the fact sooner than the servant, because the duty of inspection rests on the master, and not on the servant. In a case of latent defects,—those which are only discoverable by proper inspection,—the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223 (62 S. E. 1018); Cedartown Cotton Co. v. Miles, 2 Ga. App. 83 (58 S. E. 289).” Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 324 (63 S. E. 244).

The fact that the plaintiff discovered the defects “by a positive and careful examination” subsequently to his injury does not show that he had equal means with the defendant of knowing of the defect, for the'reason that a.failure to make such inspection prior to his injury was not a violation of any duty enjoined upon him, the defect appearing by the evidence to have been latent. See Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 (1) (106 S. E. 609). The fact of the discovery of the defects in the manner shown would tend to establish the negligence of the defendant in not having discovered them itself by the discharge of its own duty of inspection, which is corroborated by the further fact, as testified to by the plaintiff, that “it was an old break, had been broken a long time, had gotten rusty where it had broken off.” The plaintiff’s evidence shows, as he alleged, that the defect was unknown to him and could not be seen from ordinary observation, and otherwise tended to support the averments of his suit. The judgment of nonsuit was therefore erroneous.

This ease is unlike that of Bolden v. Central of Georgia Railway Co., 130 Ga. 456 (60 S. E. 1047), in which the defects were obvious and discernible by superficial observation. In Morris v. Charleston & Western Carolina Railway Co., 22 Ga. App. 186 (95 S. E. 748), no general propositions of law were laid down, but the decision was confined to the particular facts of that case. Whether the ruling there made is sound or unsound, the court was ruling upon the sufficiency of a pleading, while here the only question is whether the plaintiff proved his case as laid. The present ruling does not impinge upon either of these cases.

Judgment reversed.

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


text:
    14392.
    Laing v. Perryman.
   Jenkins, P. J.

1. In this action for damage sustained from the striking of the plaintiff’s mule and buggy by the defendant’s automobile, the evidence being conflicting, the general grounds of the plaintiff’s motion for new trial are without merit.

2. The plaintiff amended his original petition, but without materially altering or adding to the original averments, except by alleging that the defendant, 92 feet before colliding with the defendant, had approached and crossed a bridge on the highway at a speed of 25 miles an hour, and in excess of the statutory limit of six miles an hour, and continued at such unlawful speed, and struck the plaintiff, “by reason of the fact that said defendant did not have said machine under control.” While the original petition alleged merely that the plaintiff when struck was traveling west and crossing the highway on which the collision occurred, the amendment averred further that the plaintiff was proceeding on a road leading from his place of residence. The cour’t charged the jury: “This petition has been amended by other allegations, which the court deems simply as illustrative of the situation where the collision oceurred, and not furnishing any additional allegations of negligence under the law or in this case;” and further that “the issue made by the petition of the plaintiff on one hand, and the answer on the other hand of the defendant, is what you are to try in this case.” Error is assigned upon the ground that these instructions removed from the jury’s consideration the amendment referred to, which the movant contends was not merely illustrative of the situation where the collision occurred, but set forth additional allegations of negligence on the part of the defendant. Held:

(а) The act of 1910 (Ga. L. 1910, p. 92, sec. 5; Park’s Code, § 828 (e)), which was in force as to civil actions when the injury in question occurred—December 9, 1919-—■ (see Empire Life Ins. Co. v. Allen, 141 Ga. 413, 81 S. E. 820; Jones v. State, 151 Ga. 502 (1), 506, 107 S. E. 765), provides as follows: “No person shall operate a machine on any of the highways of this State as described in this act at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property, and upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways and railroad crossings, the person operating a machine shall have it under control and operate it at a speed not greater than six miles per hour.” The act requires merely that a person “upon approaching a bridge” shall have his machine “under control and operate it at a speed not greater than six miles an hour.” In the instant ease, whether or not the manner and speed in approaoMng the bridge in question, 92 feet from the scene of the collision, in contravention of the statute, could be taken as the proximate cause of the injury (Southern Ry. Co. v. Pope, 129 Ga. 842 (2), 60 S. E. 157; Macon R. Co. v. Parker, 127 Ga. 471, 56 S. E. 616; Central Ry. Co. v. Larsen, 19 Ga. App. 413, 91 S. E. 517; Hines v. Rubnite, 26 Ga. App. 354, 106 S. E. 589), the petition failed to show how such alleged acts caused or could have been the controlling cause of the collision. That portion of the amendment which alleged that the defendant, after crossing the bridge, failed to comply with the statutory requirements governing one approaching a bridge did not set forth a new ground of negligence, and therefore the charge complained of was not erroneous.

(б) The “crossing of intersecting highways” within the meaning of the act of 1910, supra, is an intersection or meeting of public thoroughfares as distinguished from private ways. 4 Words & Phrases, 3292. With reference to the averments in the amendment relating to a crossing of roads, there was no allegation or proof that the road on which the plaintiff was approaching and crossing the public, highway traveled by the defendant was-other than a private roadway leading from the plaintiff’s place of residence. The remaining portions of the amendment did not materially alter or enlarge the allegations of the original petition. There was, therefore, no error in the instruction complained of, or in failing to refer to the amendment in question.

3. For the reasons stated in the preceding paragraph, the court did not err in failing to give in charge the language or substance of the latter portion of the section of the act (Park’s Code, § 828 (e)) relating to the manner and speed of approach by an automobile to a bridge or crossing of intersecting highways, as complained of in ground 6 of the motion.

Decided November 27, 1923.

Damages; from Randolph superior court—Judge Custer presiding. January 20, 1923.

J. E. McDonald, for plaintiff.

4. Error is assigned on the ground that the court failed to instruct the jury with reference to the provisions of the act of 1910 contained in Park’s Code, § 828 (f), as follows: “Upon approaching a pedestrian in a roadway or highway as described in this Article, or a horse or horses or other draft animals being ridden or driven thereon the person operating the machine shall give reasonable warning of its approach by the use of a bell, horn, gong, or other signal and use every reasonable precaution to insure the safety of such person or animal, and in the case of horses or other draft animals, to prevent frightening the same.” While the judge charged in substance the first portion of section 5 of the act (Park’s Code, § 828 (e)), in this language, “Any person shall not operate an automobile on any of the highways of this State as prescribed under this section of the Code, that is, to wit, an automobile at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as'to endanger life or limb of any person or the safety of any property,” there was no reference in the charge to the provisions of the section with regard to signals on approaching draft animals. There being a conflict - in the evidence upon the alleged ground of negligence that no signal was given, and as to whether the defendant could have seen the plaintiff before striking him on the public highway, the failure to instruct the jury as to the provision of the statute quoted was. error requiring a reversal. Whelchel v. Gainesville Ry. Co.; 116 Ga. 431 (3) (42 S. E. 776); Central R. v. Harris, 76 Ga. 501, 511.

Judgment reversed.

Stephens and Bell, JJ., concur.