text:
    14398.
    KISER COMPANY v. BRANAN.
    Where a defendant who is sued for the balance of the purchase price of -goods pleads a total failure of consideration, a general verdict in his behalf will not be authorized unless it be shown that the goods were-totally worthless, or data be furnished to the jury by which they may determine the extent to which the consideration has failed, not less than the balance of the' purchase price sued for. Applying this ruling to the evidence in this case, the verdict for the defendant was unauthorized.
    Decided November 27, 1923.
    Complaint; from Wilkinson superior court—Judge Park. February 5, 1923.

      Jones, Parle & Johnston, for plaintiff.
   Bell, J.

M. C. Kiser Company sued W. EC. Branan for $378.80 principal, besides interest, as a balance of the purchase-price of certain shoes which the plaintiff had sold to the defendant on account. The defendant filed a plea of total failure of consideration. The entire account originally was $791.05, but payments in the aggregate of $412.25 were credited before the suit was brought. The shoes were purchased in June and July of 1920. On December 4, 1920, without notice or previous complaint, the defendant undertook to return to the plaintiff a portion of the shoes, the invoice price of which amounted to $389.00, but the plaintiff rejected them, and one cannot know from the record what ultimately became of them. They may have been lost to both parties.

A verdict was found for the defendant. The plaintiff excepted to the overruling of its motion for a new trial. The sole question is whether there was evidence authorizing the verdict. This question must be answered by an examination of the testimony of the defendant himself which is given as follows in full: “I bought 12% dozen pair of shoes from M. C. Kiser Company on June 1, 1920. Mr. Diehl was the agent of M. C. Kiser Company who took the order. The shoes were shipped immediately and received by me a few days later. When they arrived they were apparently all right and I put them in stock. I ordered one pair of shoes on July 28th which was shipped promptly. Pretty soon I began to have these shoes returned to me by my customers, and I had to make a great many pairs good, because they were absolutely worthless. In some instances the soles pulled loose, and in some instances the soles cracked across the middle. They were not fit for anybody to wear. I bought them to sell to retail trade, and they were not fit for that purpose. (Witness exhibits about eight shoes which were cracked across the soles or pulled loose in various ways.) These are some of the same shoes. They were absolutely rotten and I had to make them good. I can’t remember whom these shoes were sold to, except one pair which was returned the next day after they were sold. Practically all of the shoes I sold were this way. They were no good to me because I had to make them good to my customers and they were ruining my trade. On December 1st I shipped seventy-three pairs, worth $389, back to Kiser Company. They refused to accept them. I don’t know where they are now. I paid $200 to Kiser Company November 3, and $212.25 on December 15th. These shoes were not sold by me immediately after I got them, because there wasn’t much demand at that time. When I made the first payment in November a- few kicks had been made by my customers, but not many. It was fall before the first kick was made. I wrote them a letter October 16, 1920; another letter November 22, 1920; and another letter December 4, 1920. I didn’t complain about the quality of the shoes in any of those letters, and in fact didn’t complain about the shoes until after December 4th. I didn’t know at that time that they were so rotten.

“When Mr. Diehl was here to sell me the shoes, he had a sample to show me of each kind of shoe which I bought. I selected the shoes from these samples and gave him an order on June 1st. So far as I could tell, the sample shoes were all right, and when the shoes arrived they seemed to be all right. They may have been the same shoes as the samples, but they were absolutely no good. I can’t say that the shoes I received were any worse than the samples, but I do know that they were not fit for the purpose for which I bought them. Mr. Diehl knew that I was buying them to sell to retail trade. I don’t know how many shoes I sold that I had to make good. Practically every pair that I sold was returned. I didn’t sell all of the shoes that were shipped and I don’t know anything about the shoes that were not returned to me. I still have some of these shoes on hand at my store which were never sold. The shoes which I returned to Kiser Company on December 1st had never been used. They were new shoes and I don’t know anything about them except that so many of the others were bad. The shoes which I returned were invoiced to me at $389, and that was the price at which I returned them. Mr. Ward bought four or five pairs of these shoes one fall, and I had to make two of these pairs good. He paid for the others. All of the shoes that I sold him were no good. Etheridge bought two pair in the fall for $8 and I had to make the first pair good. It was only a few days after these shoes were sold before they were returned to me. I don’t know how many pairs I had returned, but there were a great many.”

One of the defendant’s customers then testified to having bought four or five pairs of the Kiser shoes from the defendant in the fall of 1920, and that all of them except the last pair were “no good;” that after a few days wear the soles cracked, and the witness returned them to the defendant, who made two pairs of them good.. Another witness testified to having purchased of the defendant two pairs of shoes; that he returned the first pair “because they were no good,” and that the defendant gave the witness another pair in place of them. A third witness “bought several pairs of shoes from Mr. Branan in the fall of 1920” which he had to return after a few days use “because they were no good,”—“the soles cracked and pulled loose.” The defendant was then recalled and testified further: “The shoes which these witnesses have just testified about were part of this same lot that I ordered from M. C. Kiser Company.”

The fact that the defendant returned a quantity of the shoes sufficient at the invoice prices to cover the balance of the account for which the plaintiff sues is wholly immaterial. This is true for two reasons. First, the contracts under which the shoes were sold were entire, and the defendant, having accepted and used a part of the shoes under each, could not reject the remainder. Where a contract for the purchase of goods is entire, the whole contract stands or falls together. In such a case the purchaser cannot accept a part of the goods and reject the remainder. DeVaughn’s Son v. Ohio Pottery Co., 12 Ga. App. 50 (1) (76 S. E. 593). Second, the sale was executed; the defense was that of a breach of warranty or failure of consideration. A breach of warranty, express or implied, does not annul the sale if executed, but gives the purchaser a right to damages. Civil Code (1910), § 4136; Pound v. Williams, 119 Ga. 904 (1) (47 S. E. 218). But the fact that the defendant may not be entitled to have credit for the goods returned does not deprive him of the right to show, if he can, a breach of a warranty. lie may prove a failure of consideration just as though all the goods had been retained. DeVaughn’s Son v. Ohio Pottery Co., supra.

It appears that the sale was by sample. Upon this point the plaintiffs salesman, consistently with the evidence of the defendant, testified as follows: “I was traveling for M. C. Kiser Company in June and July, 1920. I called on Mr. W. H. Branan at Lewiston, Ga., to sell him some shoes. I had my sample cases with me and exhibited to Mr. Branan samples of every shoe which he bought. He purchased from me some .shoes according to the samples which I had. He gave me an order dated June 1, 1920, for twelve dozen pairs of shoes. This is the order which he gave me dated June 1, 1920. The shoes as listed on that order were entered and shipped according to the samples from which the shoe's were ordered.”

In Imperial Portrait Co. v. Bryan, 111 Ga. 99 (1) (36 S. E. 291), it was held: “A sale of goods by sample carries an implied warranty that the bulk of the goods purchased will correspond with the sample, but in order to constitute such a sale, something more must appear than that at the time of the sale a sample was exhibited, viz., that when the exhibition was made it was mutually understood and intended that the sample was a reliable representative of the bulk of the goods purchased.” Under the evidence we think the transaction would fall within the rule of this case.

It is said in 24 R. C. L. 211, that, “If there be a latent defect in the bulk, and in the sample itself as a part thereof, and this defect is unknown and cannot be discovered by examination, it is the general rule that there is no implied warranty against this defect.” See also 35 Cyc. 223. But this does not seem to be the rule in this State. “Where goods are sold by a sample, and the goods delivered are found to correspond with the same, the buyer is bound to pay for them, even though there be a defect in the goods which would affect their value, provided such defect was in the sample and was patent, or could have been discovered by the exercise of ordinary care. But where the sample, which is the basis of the sale, is infected with a latent defect which could not be discovered by the exercise of ordinary diligence, the buyer is not bound to pay for the goods, if the defect renders the article entirely worthless, although the goods delivered to him correspond exactly in appearance and quality with the sample. This is true in every case of sale by a sample, unless the terms of the contract are to the contrary, or from the nature of the transaction the buyer would be estopped from setting up such defense. The implied warranty of the law, which is set forth in . . the Civil Code [Civil Code of 1910, § 4235], applies to sales by sample as well as to other sales. 10 Am. & Eng. Encyc. of Law 167; 2 Benjamin on Sales, 851, 873.”. Coates v. Cook, 101 Ga. 586, 583 (28 S. E. 982).

If there were defects in the shoes sold to the defendant which could not have been discovered by the exercise of ordinary care, then, in the light of the testimony of the salesman, by which it is virtually said that the bulk and the sample were the same, the inference is not unwarranted that the sample possessed the same defects which it is claimed by the defendant were found in the bulk, that is, the goods purchased. The defendant testified that the sample was apparently all right, and that “when the shoes arrived they seemed to be all right.” If the sample was infected with a latent defect which could not be discovered by the exercise of ordinary diligence, the defendant might set up the defense of failure of consideration on account of latent defects in the goods which were delivered to him, although they corresponded exactly in appearance and quality with the sample.

Nevertheless, it is our opinion that the verdict for the defendant was unwarranted, for the reason that it failed to establish that the goods were worthless, and did not furnish to the jury any data by which they could determine with any degree of certainty the extent to which the consideration had failed. In other words, before the defendant can prevail it must appear that the goods were altogether worthless or that the value of the entire quantity purchased has been lessened to the extent of the balance of the account sued for, by reason of the breach of warranty or failure of consideration. The defendant testified: “I don’t know how many shoes I sold that I had to.make good. Practically every pair that I sold was returned. I didn’t sell all of the shoes that were shipped and I don’t know anything about the shoes that were not returned to me.” He does not show that all the pairs returned were worthless. lie further testified: “I still have some of the shoes on hand at my store which were never sold. The shoes which I returned to Kiser Company on December 1st had never been used. They were new shoes and I don’t know anything about them except that so many of the others were bad.” It is not shown even that all the others were bad, and it is merely inferred that those which were returned would be bad in like proportion. The evidence clearly fails to slrow that all of the goods purchased were worthless, and the defendant is testifying not with reference to any particular part of the goods but rather in relation to all of those purchased. If it could be definitely ascertained that the failure of consideration as to the entire lot, or any part of it amounted to as much as the balance of the account, the verdict could still be upheld. This, however, is impossible, because the defendant failed to carry the burden resting upon him of showing the amount of the loss and of showing it in such a way “that the jury may calculate the amount from the figures furnished, and will not be placed in the position where their allowance of any sum would be- mere guesswork.” National Refrigerator Co. v. Parmalee, 9 Ga. App. 725 (1), 726 (72 S. E. 191); Coffee v. Worsham, 31 Ga. App. 62 (119 S. E. 665).

Judgment reversed.

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


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    14493.
    Newbern v. Milhollin et al.

   Jenkins, P. J.

“Where one purchasing real estate has the opportunity of examining it before buying, but, instead of doing so, voluntarily relies upon the statements of the vendor concerning its character and value, the contract will not be rescinded or set aside, or the purchase price of the land abated, because of the falsity of such statements, unless some fraud or artifice was practiced by the vendor to prevent such examination. This is true even though the vendee in buying the land may have acted upon the misrepresentations of the vendor or his agent.” Dean v. Merchants Bank, 24 Ga. App. 475 (101 S. E. 196); Brannen v. Brannen, 135 Ga. 590 (a) (69 S. E. 1079); Tallent v. Crim, 19 Ga. App. 16 (90 S. E. 742), and cit.; Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (b), 127 (92 S. E. 893); Clark v. Adams, 29 Ga. App. 496 (2) (116 S. E. 122). In the instant action by the vendors against the vendee, to recover the balance of the purchase price for land, represented by promissory notes, the vendee admitted the execution of the notes, but by his plea sought an abatement in the purchase price by reason of the alleged false statements by one of the vendors that the land, except a specified tract, was free from bermuda grass. While the testimony as to the making of the alleged statements and as to both the presence- and effect of the grass was conflicting, it appears that the vendee made his own examination prior to purchase, while riding over the land with one of the vendors in an automobile, that while he did not walk over the land where he testified the grass was located, he “did give it a careful look while riding through it,” that “the ground was covered by grass and weeds” which he “took to be the natural growth on the land,” and that he did not “examine the land more carefully,” because the vendor stated there was no bermuda grass on the place save on a small specified tract. It is not contended that either of the vendors said or did anything to prevent a closer examination or fuller investigation of the premises. Assuming, under the conflicting evidence and for the sake of the argument, that the contention of the defendant as to the making of the statement by the vendor, the presence of the grass, and its undesirability, is correct, yet since it appears that a casual passing examination at the time of the inspection would have disclosed the presence of the bermuda grass, with which the record indicates the defendant was familiar, if it were present, the verdict for the vendors was demanded by the evidence; and the judgment overruling the motion for a new trial cannot be reversed upon any of the grounds urged.

Decided November 27, 1923.

Complaint; from city court of Douglas—Judge Henson. March 2, 1923.

R. A. Moore, Quincey & Quincey, for plaintiff in error.

Diclcerson & Kelley, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    14507.
    Cook v. McArthur et al.

   Bell, J.

The owners of a certain store building entered into a written agreement, termed a “lease contract,” with a corporation and an individual, whereby the premises were “rented and leased” for a period of nine years at a fixed monthly rental. The contract provided that the lessees would pay for all repairs, and that the lessors should “not be liable for any expense whatever on, in, or about the premises except for State, county, and municipal taxes and fire insurance on building;” that in case of bankruptcy or insolvency proceedings involving the lessees, the lessors at their option might declare the contract void and retake possession of the property; and that no judicial officer should acquire any right, title, or interest in the property by virtue of the contract. The lease contained a covenant that the lessees should “not sublet said premises, or any part thereof, without the written consent” of the lessors, and a provision that, on the failure of the lessees “to perform any part of this contract,” the lessors had the option “to declare this lease void, cancel the same, and take possession of the premises.” There was no covenant or stipulation against an assignment by the lessees or either of them. The corporate lessee subsequently executed 'to its individual colessee a written assignment of all of its “rights, title, and interest in the said lease and the premises described therein.” It appears that about seven weeks thereafter the lessors evicted the lessees by taking charge of the property and renting it to other persons. The individual colessee, claiming the entire contract rights, filed suit against the lessors for the- alleged eviction and breach of contract, claiming as damages the difference between the contract rental value and the actual rental value for the period of the lease. The defendants filed general and special demurrers, the former based upon the grounds “that the alleged transfer of the said lease as set forth . . constitutes an assignment without the consent of the parties defendant, and a breach of the said contract of lease on the part of the plaintiff, the lease being joint and not several or severable, and such transfer being in violation of the terms of said lease, as well as violation of the legal rights of these defendants under the law,” and that “the attempted assignment of the lease in itself constitutes a breach of the contract of lease, which would justify the defendants in evicting the plaintiffs.” The petition was also attacked for nonjoinder of parties plaintiff, upon the ground that, the transfer being ineffectual and void, the lease remained jointly in the cotenants, and the corporate lessee was not made a party. The plaintiff excepted to the following judgment: “The general demurrer, original and amended, is sustained, and the plaintiff’s petition dismissed.” No judgment was entered on the special demurrers. Held:

1. As a general rule, the action on a contract must be brought in the name of the party in whom the legal interest in such contract is vested. Civil Code (1910), § 5516. Assuming for the purpose of this decision, but not deciding, that the contract of lease here involved conveyed only a usufruct, and was not assignable as against the rights of the owners, and that the suit for a breach of the contract against the owners should have been brought in the name of each of the tenants in common, instead of by one of them only, who was also the assignee of the other tenant (see Civil Code of 1910, § 5518), still such a defect, if it be a defect, could only be taken advantage of by a timely special demurrer. Civil Code (1910), §§ 6285, 5630; Hunt v. Doyal, 128 Ga. 416 (3), 420 (57 S. E. 489); Hughes v. Hughes, 72 Ga. 173 (2); Hightower v. Mustian, 8 Ga. 506 (3), 510; Hand v. Dexter, 41 Ga. 454, 464; Ray v. Pitman, 119 Ga. 678 (2), 682 (46 S. E. 849); Eagan v. Conway, 115 Ga. 130 (6) (41 S. E. 493); Plant System, v. Dickerson, 118 Ga. 647, 648 (45 S. E. 483). Here, since the’order of dismissal was expressly based upon the general demurrer, “the special grounds will not be considered, but will be left to subsequent determination by the trial court.” Willingham v. Glover, 28 Ga. App. 394 (1) (111 S. E. 206); Linder v. Whitehead, 116 Ga. 106 (42 S. E. 358); Simpson v. Sanders, 130 Ga. 265, 271 (60 S. E. 541). The rule is otherwise where the trial judge, “without specifying the grounds or the basis of his decision, passes a general order sustaining the demurrer and dismissing the petition,” in which event “the judgment will be treated as sustaining the entire demurrer upon all its grounds, and the special as well as the general grounds must be considered on review if the petition is not subject to. the latter.” Willingham v. Glover, supra; McLaren v. Williams, 132 Ga. 352 (2) (64 S. E. 65); Herring v. Smith, 141 Ga. 825 (4) (82 S. E. 132).

2. Irrespective of whether the nine-year lease conveyed only a usufruct, and of whether, even without any contractual prohibition upon their right so to do, the joint lessees were not authorized to assign their interests even to one another (see, in this connection, Civil Code of 1910, §§ 3691, 3685, 3687, 3722, 3723, 3724; Hutcheson v. Hodnett, 115 Ga. 990, 993, 994 (42 S. E. 422); Schofield v. Jones, 85 Ga. 816, 823 (11 S. E. 1032); Collier v. Hyatt, 110 Ga. 317 (2) (35 S. E. 271); Robinson v. Perry, 21 Ga. 183, 185, 186 (68 Am. Dec. 455); Garner v. Byard, 23 Ga. 289 (68 Am. Dec. 527); DeFoor v. Stephens, 133 Ga. 617, 619 (66 S. E. 786); Walker v. Wadley, 124 Ga. 275, 278, 284, 285 (52 S. E. 904); Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593 (4) (79 S. E. 965); Harms v. Entelman, 21 Ga. App. 295 (94 S. E. 276); 16 Ruling Case Law, 828, 833), yet, since eacli of the joint lessees, as a tenant in common, was equally entitled under the lease to the right of possession against the owners (see Civil Code of 1910, §§ 3723, 3724; King v. Neel, 98 Ga. 438, 441 (25 S. E. 513, 58 Am. St. Rep. 311); Hale v. Hale, 28 Ga. App. 509 (1) (111 S. E. 740); 7 R. C. L. 820-822, 817 § 10, 891, 893), unlike the assignee in Bass v. West, 110 Ga. 698 (5), 705 (36 S. E. 244), and could not be summarily ousted by the landlords as a mere intruder, the attempted assignment by one of the cotenants, of his interest in the lease to the other, would not annul the rights of the latter under the contract, where it contained no provision for such a forfeiture in case of such an attempt, or even prohibiting such an assignment. 16 R. C. L. 1115, 1125, 831, 838, 848.

Decided November 27, 1923.

Action for breach of contract; from city court of Atlanta—Judge Eeid. March 5, 1923.

Burress & Dillard, for plaintiff.

McDaniel & Neely, Mitchell & Mitchell, for defendants.

3. A provision in a lease for a forfeiture of the term in case of breach of a stipulation against subletting will ordinarily be enforced, even where such subletting is from one tenant in common to another; but if the lease merely stipulated against subletting, with a forfeiture therefor, an assignment, being distinct from a subletting, is not a breach of a covenant against the latter. 16 R. C. L. 870, 832, 1124, 1125. Provisions in leases for forfeitures are to be strictly construed. 16 R. C. L. 1116.

4. The instant petition, under the rules stated, not being subject to the general demurrer, it was error to sustain the same.

Judgment reversed.

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


text:
    14511.
    Tumlin v. Guest.
   Jenkins, P. J.

1. Where in a plea to a suit on a note, executed by the defendant and the husband of the plaintiff, payable to her order, 'the defendant sets up, as an accord and satisfaction or payment, an oral agreement with the plaintiff, whereby the defendant withdrew from a partnership, consisting of himself and plaintiff's husband, and surrendered all his interest in the business and assets, that such surrender of his interest was accepted by her in full payment and satisfaction of his liability to her, and that the plaintiff, when requested by the defendant to surrender the note, stated that it would be destroyed, paragraphs in the plea reciting the circumstances of the formation and existence of the partnership and the execution of the note by the two partners, even if not strictly germane to the essential issue raised by the plea, did not render the plea subject to an oral'motion to strike in the nature of a general demurrer. Such of the allegations of the plea as might not be treated as proper matter of inducement and history explanatory of the alleged accord and satisfaction (Bunting v. Hutchinson, 5 Ga. App. 194, 198, 199, 63 S. E. 49; McSwain v. Edge, 6 Ga. App. 9, 12, 64 S. E. 116) were subject only to special demurrer pointing out such irrelevant matter.

(a) The oral motion to strike the 16th paragraph of the plea, setting up a lack of consideration in the note, the overruling of which is complained of in exceptions pendente lite and in argument in the briefs, appears from an order in the record to have been sustained subsequently to tne filing of the exceptions pendente lite and before the submission of the case to the jury. It further appears that the judge in his charge explicitly withdrew that paragraph and plea from the consideration of the jury.

2. Great lapse of time after maturity of a note, taken in connection with other circumstances, may be considered as a circumstance by the jury in determining whether all the facts proved would raise an inference of payment, or as cumulative evidence in support of the debtor’s testimony as to a payment. Any circumstance which tends to make the proposition of payment more or less probable may be considered by the jury. Norton v. Aiken, 134 Ga. 21, 24 (67 S. E. 425); Milledge v. Gardner, 33 Ga. 397, 401; 30 Cyc. 1275.

(а) Grounds 4 and 5 of the motion for new trial, in which the plaintiff complains of the admission, as irrelevant, of testimony of the defendant as to the arrangement and circumstances attending the dissolution of the partnership, and conversations on the subject with the plaintiff, are without merit, since such testimony was directly relevant as throwing light upon the issue of accord and satisfaction or payment as raised by the plea.

(б) Likewise, testimony of the defendant as to his being engaged in work for several months in the city where the plaintiff then resided, at a time about 9 or 10 years after the date of maturity of the note, and that he talked with the plaintiff and she said nothing with reference to the note, and that she never subsequently said anything to him on the subject, was properly admitted as a circumstance in support of the plea and the defendant’s testimony that the plaintiff had agreed to release him from liability in consideration of his surrender of his partnership interest to her and her husband, and had promised to destroy the note. ,

(c) In like manner, testimony relating to the formation of the partnership between the defendant and the plaintiff’s husband, and the circumstances attending the execution of the note in question to the plaintiff as an alleged partnership debt, was properly admitted, as relevant, not upon the theory of inquiring into the consideration of the note or into collateral questions immaterial to the issue of payment, but as facts or circumstances for the jury to consider as explanatory of the essential contention, and in connection with the credibility or probability of the defendant’s testimony upon the disputed issue of payment.

(d) The admitted evidence with reference to where the defendant had lived, and his business in a city other than that of plaintiff’s residence, subsequent to the transactions in question, and as to whether he had seen his former partner, plaintiff’s husband, during such time, although irrelevant and immaterial as supporting the defendant’s contentions, cannot be taken as having any tendency to prejudice the real issue so as to constitute reversible error. Norton v. Aiken, 134 Ga. 21 (3) (67 S. E. 425).

Decided November 27, 1923.

Complaint; from city court of Atlanta—Judge Eeid. February 3, 1923.

Anderson, Rountree & Crenshaw, for plaintiff.

Etheridge, Sams & Etheridge, for defendant.

3. Exceptions are taken to certain portions of the charge, in which the judge, in stating the contentions of the defendant, referred to the contentions under his admitted evidence as to the circumstances attending the formation of the partnership and the execution of the note to the plaintiff as an alleged debt of the partnership, in connection with his essential contention of payment and the alleged agreement with the plaintiff on the dissolution of the partnership. These instructions are attacked solely upon the ground that the court, by referring to such collateral contentions, confused and misled the jury, when he should have submitted, as the single issue, whether there was or was not an accord and satisfaction of the note. The statement of contentions made by the defendant under his evidence, under the exceptions as taken, cannot be taken as confusing or misleading to the jury. The evidence was properly admitted, as relevant in explanation and support of the defendant’s contentions as to the accord and satisfaction; and the judge in the charge made clear the true issue to be determined, that the burden of proof was on the defendant to sustain his plea, and that the jury should find for the plaintiff unless the defendant showed by a preponderance of evidence that the note was paid by the alleged agreement.

4. The court properly overruled the plaintiff’s motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    14517.
    Cartersville Grocery Co. v. Taylor.
   Bell, J.

1. If a purchaser refuses to take and pay for goods bought, tie seller (1) may retain them and recover the difference between the contract price and the market price at the time and place for delivery; or (2) he may sell the property, acting for this purpose as agent for the vendee, and recover the difference between the contract price and the price on resale; or (3) he may store or retain the property for the vendee and sue him for the entire price. Civil Code (1910), § 4131. The petition in this ease, in a single count, was sufficient as a basis for the recovery of damages under either the first or the second remedy stated in the code section cited above. If it was objectionable for duplicity, the point was not made, and such demurrers as were filed were overruled without exceptions. In such a case the plaintiff could recover upon either theory pleaded upon which he might elect to proceed upon the trial and establish by evidence. New Zealand Fire Insurance Co. v. Brewer, 29 Ga. App. 773 (8 e) (116 S. E. 922).

Decided November 27, 1923.

2. Where, on the refusal of the purchaser to take and pay for goods bought, the seller elects to sell the property, acting for this purpose as agent for the vendee, and to recover the difference between the contract price and the price on resale, it is indispensable that notice of the intention to resell be given to the vendee by the seller. Green v. Ansley, 92 Ga. 647 (1) (19 S. E. 53, 44 Am. St. Rep. 110); Davis Sulphur Ore Co. v. Atlanta Guano Co., 109 Ga. 607 (34 S. E. 1011); Mendel v. Miller, 126 Ga. 834 (1), 837 (56 S. E. 88, 7 L. R. A. (N. S.) 1184); Felty v. Southern Flour Co., 140 Ga. 332 (78 S. E. 1074); Robson v. Weil, 142 Ga. 429 (5) (83 S. E. 207); Sims-McKenzie Grain Co. v. Patterson, 10 Ga. App. 742 (73 S. E. 1080). In the instant case what was claimed by the plaintiff upon the trial to have constituted such notice was a letter from the plaintiff to the defendant, as follows: “Referring to the 120 barrels of Swansdown flour which we áre holding for you, beg to advise that we have an offer from the mill to take this back at $10 per barrel, subject to our prompt acceptance. We are still willing to deliver you this flour along in small lots, payments to be made weekly, and wish to know at once whether you wish us to fill your contract or sell this flour for your account. This would net you something like $9.40 here for the flour. Please let us know to-morrow what you intend to do about this.” The defendant replied, saying, among other things, “I don’t think it is up to me to dictate what should be done with the flour.” Held: The plaintiff’s letter was not a sufficient compliance with the above requirement as to notice of the plaintiff’s intention to resell. It amounted only to an inquiry as to the wishes of the defendant, or at most to a declaration of intention to resell if the defendant so directed, but did not declare what would be done if such direction was withheld. If the defendant had replied that he wished the resale, then the two letters, taken together, might have implied an agreement between the parties, and therefore an intention on the part of the plain.tiff, that it would pursue such a course; but such was not the case. It follows that under the evidence the plaintiff was not entitled to recover damages by the second remedy stated in section 4131 of the Civil Code (1910).

3. Nor was there any evidence of the difference between “the contract price and the market price at the time and place for delivery,” the plaintiff merely showing the price received on a resale for delivery in Indiana, while delivery under the contract was to be made at Cartersville, Georgia. Furthermore, the only witness sworn, the president of the plaintiff company, testified: “The difference I sue for is $734.52, being the diiference between the contract price and the price on resale.” Thus, there was likewise a failure to bring the case within the first remedy stated in the code section referred to.

4. Plaintiff having failed to prove its case as laid upon either theory set out in the petition, the award of a nonsuit was proper.

Judgment affirmed.

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

Action, for breach'of contract; from city court of Cartersville— Judge Townsend. December 13, 1922.

James B. Whitaker, for plaintiff.

G. G. Pittman, Q. II. Aubrey, for defendant.


text:
    14530.
    GEER v. GROW.
    Where a promissory note payable on May 1, 1921, contained a stipulation that if the maker was unable to pay it at maturity, it was to be divided into two notes, one to be payable “in the fall of 1921,” and the other “in the fall of 1922,” and where the payee filed suit upon the original note in April, 1922, the defense that a part of the obligation had not matured before the filing of the suit was not maintainable, where the maker showed only that he was unable to pay the original note at maturity. He should have proved further than he gave or tendered the new notes in compliance with the condition precedent to his right to enforce the extension agreement.
    Decided November 27, 1923.
    Complaint; from Miller superior court—"Judge Custer. February 24, 1923.

      W. I. Geer, for plaintiff in error.

      B. W. Grow, contra.
   Bell, J.

R. W. Grow, the payee, brought suit against W. I. Geer, the maker, to the April term, 1922, of the superior court of Miller county upon a promissory note dated October 14, 1920, due May 1 after date, but containing a stipulation as follows: “If Geer sells his peanuts for enough to extinguish it, then he is to pay it. When this note is due, if Geer is not able to pay, then it is to be divided into two notes, one due in 1921 and the other in 1922.” Geer filed a defense setting up that under the conditions of the note only one half of it had matured, and that the plaintiff was not entitled to recover the remainder in the present action. A verdict was found for the plaintiff for the full amount sued for. Geer excepted to the overruling of his motion for a new trial.

Upon the trial the plaintiff testified that on the failure of Geer to pay the note at maturity he demanded the new notes, one to be payable in the fall of 3921, and the other in the fall of 1922. The defendant testified that he was unable to sell his peanuts for enough to extinguish the note, and was unable to pay it at maturity. Some, if not all, of the peanuts had been destroyed by fire in the warehouse. While he emphatically denied that the payee had ever demanded the execution of the new notes, he did not show that he had ever tendered them. Both parties appear to have construed the instrument as providing that if the new notes were executed, they would become due in the “fall of 1921” and the “fall of 1922,” respectively.

If the construction of the contract is doubtful, that which goes most strongly against the party executing the instrument or.undertaking the obligation. is generally to be preferred. Civil Code (1910), § 4268 (4). Conditions may be precedent or subsequent. In the former the condition must be performed before the contract becomes absolute and obligatory upon the other party. Civil Code (1910), § 4224. In case of concurrent conditions to be simultaneously performed, if one party offers to perform and the other party will not, the first is discharged from the performance of his part, and may maintain an action against the other. Civil Code (1910), § 4302. We think that this instrument, properly construed, is an unconditional promise on the part of Geer to pay a sum of money, but containing an option granted by the payee, under which an extension of the maturity might be obtained upon the performance by Geer of certain conditions precedent. Before he would be entitled to maintain the defense that one half of the note was not mature at the time of the filing of the action, it was incumbent upon him to show not only that he was unable to pay the note according to its original terms, but also that he gave or tendered the new notes in renewal. His evidence was lacking in this material respect, and a verdict was demanded against him for the full amount of the note. It is thus immaterial whether Grow demanded the notes or not, and it was therefore error without prejudice if the court, as is complained of in the motion for a new trial, improperly assumed or expressed an opinion in his charge to the jury that the plaintiff had in truth made such a demand. It follows that the trial court was right in overruling the motion for a new trial. See Finlay v. Ludden & Bates, 105 Ga. 264 (1) (31 S. E. 180); Milledgeville Cotton Co. v. Cary, 9 Ga. App. 391 (71 S. E. 503); Haag v. Rogers, 9 Ga. App. 650 (1) (72 S. E. 46); Anderson v. Swift, 106 Ga. 748 (2) (32 S. E. 542); Strickland v. Bank of Cartersville, 141 Ga. 565 (1) (2), 571 (81 S. E. 886).

We do not find canse for awarding damages against the plaintiff in error in accordance with the motion of the defendant in error therefor.

Judgment affirmed.

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


text:
    14531.
    Morrison v. Evans.
    Decided November 27, 1923.
    Certiorari; from Muscogee superior court—Judge Munro. March 24, 1923.

      J. E. Chapman, W. II. McCrory, for plaintiff in error.

      Davis & Davis, contra.
   Jenkins, P. J.

1. While the husband is legally bound to support the wife, and where necessaries are furnished to her, in the absence of any express agreement to the contrary, the presumption is that she contracted for them in the right of her general agency for her husband, and that he and not she is liable, it is nevertheless true that a wife, who personally applies to a tradesman for the purchase of groceries, and opens the account in her own name under an express agreement that she herself will pay for the goods, becomes liable upon her obligation thus entered upon. Bell v. Rossignol, 143 Ga. 150 (84 S. E. 542, L. R. A. 1915D, 1184, Ann. Cas. 1917C, 576); Ga. Grocery Co. v. Brunson, 24 Ga. App. 484 (101 S. E. 130).

2. Where a suit on open account for necessaries furnished to a wife is brought against both the husband and wife jointly, and where from the uncontradicted evidence it appears that the husband was not a party to the contract, that the account was opened in the wife’s own name and under her express promise to pay for the goods, consisting of groceries, which in point of fact were consumed not only by'the family but by the wife’s boarders, the husband is not liable under his general implied legal obligation, and a verdict rendered against Mm • is uni authorized. Mitchell v. Treanor, 11 Ga. 324 (3) (56 Am. Dec. 421); Goodson v. Powell, 9 Ga. App. 497 (71 S. E. 765); Commercial Bank v. Mitchell, 25 Ga. App. 837 (2) (101 S. E. 130). Accordingly, the court erred in overruling the husband’s certiorari.

Judgment reversed.

Stephens and Bell, JJ., concur,


text:
    14533.
    Wade v. Eason.
   Bell, J.

1. A ground of a motion for a new trial must be complete in itself. Daniel v. Schwarzweiss, 144 Ga. 81 (1) (86 S. E. 239). An assignment that the court “erred in failing to clearly and distinctly state to the jury the issues raised by the affidavit of illegality to the executions issued upon the foreclosure of the two mortgages in question, in order that they might understand what the issues were and thus be guided in finding a verdict in accordance with the facts of the case,” without specifying what issues are referred to, is too general to raise any question for decision. The same is also true of an assignment that a given charge is argumentative, or that it is misleading and confusing to the jury, or that it left the jury without a proper guide in determining issues raised by the pleadings (here an affidavit of illegality), when it is not pointed out wherein the charge was argumentative, misleading, confusing, or otherwise insufficient as assigned. Tarver v. Deppen, 132 Ga. 798 (4) (65 S. E. 177, 24 L. R. A. (N. S.) 1161); Seaboard Air-Line Railway v. Randolph, 136 Ga. 505 (5) (71 S. E. 887); Riddle v. Sheppard, 119 Ga. 930 (3) (47 S. E. 201); Webb v. State, 8 Ga. App. 430 (4), 432 (69 S. E. 601).

Decided November 27, 1923.

Mortgage foreclosure; from city court of Waynesboro—Judge W. H. Davis. February 22, 1923.

Pierce Brothers, Fvans Heath, M. 0. Barwiclc, for plaintiff in error.

W. H. Fleming, F. 8. Burney, Phillips & AVbob, contra.

2. In the absence of a written request, it is not reversible error for the court to omit to instruct the jury as to the burden of proof in a civil ease. A fortiori, it is not error to fail to explain what is meant by burden of proof (Hickman v. Bell, 10 Ga. App. 319 (2), 73 S. E. 596; Southern Railway Co. v. Wright, 6 Ga. App. 172 (7), 64 S. E. 703; Whittle v. Central of Georgia Railway Co., 11 Ga. App. 257 (1), 74 S. E. 1100); nor, in the absence of such request, will the failure to charge on the subject of the preponderance of evidence require a new trial. Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5).

3. The “portions of the charge complained of were adapted to one phase of the case as presented under the testimony,” and were not subject to the assignments made. “If other theories of the case . . made by the evidence . . were not covered by the charge, this should have been excepted to on that ground.” James v. Hamil, 140 Ga. 163 (3) (78 S. E. 721). There was no request to charge and no assignment upon any omission to give any particular chhi'ge. A correct instruction applicable to one phase of a ease as presented by the evidence was not erroneous because the court did not charge the jury upon some other pertinent legal principle in connection therewith. Jenkins v. National Union, 118 Ga. 587 (1) (45 S. E. 449); Tucker v. Central of Georgia Railway Co., 122 Ga. 387 (5) (50 S. E. 128).

4. Applying the above rulings, there was no merit in any of the special grounds of the amended motion for a new trial. There is no general insistence upon, or even reference to, the general grounds of the motion, and the court did not err in overruling it for any reason urged.

Judgment affirmed.

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


text:
    14539.
    Insurance Company of North America v. Samuels.
   Bell, J.

1. If a policy of insurance is capable of being construed in different ways, that interpretation must be placed upon it which is most favorable to the insured. Massachusetts Benefit Life Asso. v. Robinson, 104 Ga. 256 (2) (30 S. E. 918, 42 L. R. A. 261). An exception in a policy of insurance is to be taken most strongly against the insurer. Empire Life Insurance Co. v. Einstein, 12 Ga. App. 380 (4) (77 S. E. 209).

2. A policy of insurance against loss by theft, pilferage, or larceny of personal effects such as “wearing apparel, bedding, linens, plate and plated ware, printed books and music, photographs and their frames, musical and scientific instruments, photographic apparatus and supplies, toys and games, sportsmen’s implements, toilet articles, baby carriages, canes, parasols, umbrellas, clocks, watches, jewelry, trunks, suit cases, bags and other receptacles of travel; the property of the assured or any member of the assured’s household, excluding employees, boarders and guests,” “wherever the property may be (except in the permanent residence of the assured, or in storage, or in any place where assured or any member of the assured’s household ordinarily keeps an automobile),” “within and or in transit the United States and countries in the world,” and providing further that “this policy shall not cover household furniture conveyances and their appurtenances, salesmen’s samples, merchandise for sale or exhibition, theatrical wardrobe, theatrical properties and appurtenances, accounts, bills, currency, deeds, evidences of debt, moneys, notes, securities nor any property specifically or otherwise insured,” will not be construed so as to limit the insxtrance to “baggage,” nor to losses while the insured is “touring,” though the policy is entitled a “Tourist Baggage Policy,” there being no stipulation elsewhere in the policy which expressly or by necessary implication would so limit its provisions. In ascertaining the meaning of the contract, the things expressly included as well as those expressly excluded may be considered.

{a) Such a policy as to travel will include protection against loss by theft of a diamond pin worn upon the person of the insured while riding in his automobile in the driveway leading from the street to his garage (and before reaching the garage) situated at the rear end of the lot where he was living, without reference to whether he was “touring” or returning from a “tour” at the time.

3. While an averment in an action upon a policy of insurance, for the loss of a diamond pin, that as the plaintiff was driving his automobile at night into the driveway leading from the street to his garage on the lot where he lived “some man unknown to petitioner stopped petitioner, pointed a pistol at him and took from the person of petitioner the said diamond pin,” would be technically insufficient as a charge of theft or larceny in a criminal accusation or indictment, it will imply, when fairly construed as a pleading in a civil ease not specially demurred to, that the plaintiff’s loss was occasioned by a robbery. Penal Code (1910), §148.

4. Theft and larceny are synonymous. Penal Code, §§ 151, 152. A robbery whether by force or intimidation includes theft or larceny. P. C., § 148; Sledge v. State, 99 Ga. 684 (2) (26 S. E. 756). A loss by robbery is a loss by theft or larceny (though the converse would not be true), and is none the less so because in the offense of robbery there are elements additional to those necessary to constitute theft or larceny.

Decided November 27, 1923.

Action upon fire-insurance policy; from Fulton superior court —Judge Ellis. March 7, 1933.

Application for certiorari was denied by the Supreme Court.

Smith, Hammond & Smith, for plaintiff in error.

Branch & Howard, contra.

5. In the construction of a contract the words used therein will generally be accepted in their usual and common signification. Civil Code (1910), §4268 (2). In construing a contract of insurance the intention of the parties, as in other cases, must be sought for in accordance with the true meaning and spirit in which the agreement was made and expressed in the written instrument, and the ordinary and legal meaning of the words employed must be taken into consideration. Worth British &c. Insurance Co. v. Tye, 1 Ga. Ap. 380 (1) (58 S. E. 110).

6. The word “residence,” as used in the stipulation against liability for loss of any of the property while “in the permanent residence of the insured,” accepted in its ordinary signification (as it should be, no other intention of the parties appearing), implies the plaintiff’s dwelling or the house or building in which he lives or resides. See Webster’s Unabridged Dictionary. The jirovision of the Penal Code, § 146, in reference to burglary, “that all outhouses contiguous to or within the curtilage or protection of the mansion or dwelling house shall be considered as parts of the same,” or any legal definition of the word “dwelling” as extending to the limits of the curtilage, attaches thereto a special or technical meaning peculiar to the law, which should not be applied in construing contracts, unless it is apparent that such was the intention of the contracting parties. See Worth British &c. Insurance Co. v. Tye, supra. It follows that under the averments of the suit the loss did not occur in the plaintiff’s residence nor in any of the excepted places.

7. The petition sufficiently averred a loss by theft or larceny of property included within the protection of the policy, at a place and under circumstances where the company would be liable. A cause of action is set forth, and the court did not err in overruling the motion of the defendant insurer to dismiss the petition.

Judgment affirmed.

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


text:
    14544, 14584.
    Mobley v. Tinsley et al.; and vice versa.

   Jenkins, P. J.

In a suit for commissions, where there is evidence going to show that the defendant as owner authorized the plaintiff to procure a purchaser of certain property, agreeing to pay for such services a stated commission, not on any agreed contract price, but on whatever sale amount should be arrived at between himself as owner and any purchaser thus procured, and where it appears that the plaintiff subsequently interested a third person in the purchase and sent him to the defendant with a view to purchasing the property, but where it appears, without dispute, that, although the plaintiff had ample opportunity to notify the owner that the customer had been interested by himself, he nevertheless failed to do so, and the owner dealt with» the prospective purchaser without any sort of notice or knowledge that he had been interested by the plaintiff, and, after negotiations extending over several months, finally accepted a greatly reduced purchase price, as from one with whom he in good faith dealt as an original customer procured by himself, and without any notice or knowledge that such price would be charged with a sales commission, the plaintiff cannot recover: In a case where the owner had a right to sell the property for himself, and where, under the agreement with the plaintiff, no contract price was agreed upon, but was to be arrived at in negotiations between the customer and the owner, the latter was entitled to know, in fixing or reducing such amount, that he would be chargeable with commissions. See Doonan v. Ives, 73 Ga. 295; Washington v. Jordan, 28 Ga. App. 18 (7) (109 S. E. 923). The rule would be different in a ease of a broker’s contract where there was an agreed sales price fixed between the owner and broker, and the owner effected the sale, even without notice that the customer had been procured by the agent, but in so doing received the price named in the brokerage agreement. Indiana Fruit Co. v. Sandlin, 125 Ga. 222 (2) (54 S. E. 65); 9 Corpus Juris, 612; Quist v. Goodfellow, 99 Minn. 509 (110 N. W. 65, 8 L. R. A. (N. S.) 153, and case note, 9 Ann. Cas. 431). In Garrett v. Wall, 29 Ga. App. 642 (116 S. E. 331), no question of notice or knowledge was involved, and in that case the record discloses that the defendant dealt with the customer as one furnished by the plaintiff.

Decided November 27, 1923.

Complaint; from city court of Macon.—Judge Gunn. March 2L 1923.

8. D. Dell, for plaintiff.

Hall, Grice & Bloch, for defendants.

2. In view of the above ruling, and under the undisputed evidence in this case, the trial judge did not err in directing a verdict in favor of the defendant.

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

Stephens and Bell, JJ., concur.


text:
    14552.
    McDuffie Oil & Fertilizer Co. v. Sims.
    Decided November 27, 1923.
    Complaint; from Eichmond superior court—Judge H. C. Hammond. August 5, 1922.
    Application for certiorari was denied by the Supreme Court.

      J. B. Burnside, J. R. Bowden, for plaintiff.

      Hamilton Phinizy, for defendant.
   Bell, J.

Where two executions are held by different parties against a common debtor, and where property of the debtor is sold under the junior execution, the sheriff may pay the proceeds over to the plaintiff by whose process it was raised, unless the holder of the senior execution deposit his lien with the sheriff, and thus claim the fund. Where the senior lienholder fails to do so, but passively permits the fund to be paid over to the holder of the junior lien, who receives the same without fraud or actual knowledge of the prior claim, the senior lienholder cannot recover the fund from the junior lienholder. See Civil Code (1910), §5348, and cf. Harris v. Grant, 96 Ga. 211 (2) (23 S. E. 390); DeVaughn v. Harris, 103 Ga. 102 (29 S. E. 613); Todd v. Hurst Supply Co., 17 Ga. App. 98 (5) (86 S. E. 255); 23 C. J. 505. Whether, with actual knowledge of the prior lien by the junior lienholder, or fraud on his part by which the senior lienholder was prevented from depositing his lien, or otherwise injured, the same rule would be applicable, it is unnecessary to decide in the instant case, in which the petition is without an allegation of such knowledge or of fraud. The general demurrer was properly sustained.

Judgment affirmed.

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


text:
    14607.
    Georgia Granite Corporation v. Union Granite Company.
   Jenkins, P. J.

This was a suit by a partnership on a “liquidated account” for work and services performed. The petition alleges that an itemized statement is not attached thereto, as all the books and papers relative to said account are in the possession of the defendant; but that “said account sued for has been liquidated and agreed upon, and has been carried on the books of the defendant for more than two years as a liquidated balance due petitioner.” The petition does not allege a promise by the defendant to pay the amount sued for. The defendant in its answer denied generally the allegations of the petition, and for further plea said that, while the defendant did owe plaintiffs a small “balance, much less than the sum sued for, the plaintiffs are indebted to defendant in a greater sum, by reason of the fact that plaintiffs did certain work in the finishing and cutting of granite jobs for the defendant company, according to specifications and orders turned over to them for each particular contract; that they “had made serious mistakes in the lettering of certain jobs, failed to cut and finish other jobs according to specifications, and made such mistakes in their work as caused said jobs to be declined in some instances, and in some instances to be charged back to defendant for correction, defendant having to pay for the corrections and freight charges on the jobs corrected, and having to lose entirely the jobs rejected. Wherefore defendant prays judgment of the court for such amounts against the plaintiff.” The plea does not state what amount was admitted to be owing by the defendant to the plaintiffs, nor does it state what amount the defendant was entitled to by way of recoupment. The plea was not demurred to. Proof was made as to the amount due by the admissions of the defendant, except as affected by its claim of recoupment, and proof was submitted as to the quality of the work. Held:

1. The suit cannot be treated, and was not tried, as being for an “account stated.” “An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.” Moore v. Hendrix, 144 Ga. 646 (87 S. E. 915); Russell v. Wineburg, 30 Ga. App. 319 (117 S. E. 666; Shores-Mueller Co. v. Bell, 21 Ga. App. 194, 195 (1) (94 S. E. 83). There is no dispute, under the evidence, that the account was liquidated in the sense that the amount of services performed and the price to be paid therefor were fixed and determined. Rice-Stix Dry-Goods Co. v. Friedlander Bros., 30 Ga. App. 312 (117 S. E. 762). The proved previous admissions of the defendant fully authorized a finding that the plaintiffs were entitled to the amount sued for, unless the defendant was entitled to damages by way of recoupment. There was evidence on behalf of the plaintiff going to show that the work contracted for was properly performed. Consequently the verdict cannot be set aside upon the general grounds.

2. “Testimony offered for the purpose of proving an accord and satisfaction is inadmissible in behalf of a defendant whose answer does not set up a defense to which such testimony would be applicable. ” Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 (1) (33 S. E. 961). The testimony referred to in the 4th ground of the motion for new trial being therefore irrelevant, that ground of the motion is without merit. Smith v. Page, 72 Ga. 539. See also Barksdale v. Security Investment Co., 120 Ga. 388, 396 (47 S. E. 943).

3. “An exception to a correct charge, because of failure to give, in the same connection, some other pertinent legal proposition, is not a good assignment of error.” Macon Ry. & Lt. Co. v. Barnes, 121 Ga. 443 (3) (49 S. E. 282); Smith v. Brinson, 145 Ga. 406 (2) (89 S. E. 363); Atlanta R. Co. v. Miller, 23 Ga. App. 347, 350 (3) (98 S. E. 248). The 5th ground of the motion for new trial -is therefore without merit.

4. “An assignment of error upon the refusal of the court of award a nonsuit will not be considered where the case proceeded to a verdict, and the defendant excepted to the overruling of a motion for a new trial, which included the ground that the verdict in favor of the plaintiff was contrary to the evidence and without evidence to support it.” Marietta Mining Co. v. Armstrong, 25 Ga. App. 23 (1) (102 R. E. 451); American Ry. Express Co. v. Miller Mfg. Co., 28 Ga. App. 622 (112 S. E. 653). The 6th ground of the motion for new trial with reference to the refusal of a nonsuit will not be considered, since the evidential questions thus raised are disposed of under the general grounds.

Decided November 27, 1923.

Complaint; from city court of Elberton—Judge Grogan. April 7, 1923.

R. Stapleton, for plaintiff in error.

J. T. SisJc, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    14615.
    Jones et al. v. Bank of Powder Springs.
   Jenkins, P. J.

The bank sued on a note for $330. The defendants by their sworn plea denied in general terms the execution of the instrument sued on, and set up that the only note which they had signed and delivered to plaintiff was one in the sum of $33, on which they received that amount. The note sued on (which was admitted in evidence without objection), by both its figures and writing, called for $330. There is nothing in the record to indicate that it showed any evidence of having been altered. The officials of the bank both testified that it was taken for $330 and represented a loan in that sum actually paid to the defendants less the interest. Both of the defendants testified that the note sued on was signed by them. Each testified that when he signed the note he noticed only the amount stated by the figures, and that this indicated $33. One of the defendants testified that the smaller amount was what he actually received on the loan. The jury found for the plaintiff in the amount sued for. Defendants except to the following charge of the. court: “The court instructs you: when the plaintiff introduced in evidence the note sued upon, that made a prima facie case in favor of the plaintiff for the amount stipulated in the note, and that if the ease had stopped at that point without other evidence, the plaintiff would be entitled to a verdict for the amount of the note, principal, interest, and attorney’s fees specified in the note; and the effect of the introduction of the note is also to put the burden on the defendants here to show by a preponderance of the evidence,— that is, the greater weight of the evidence,—they did not receive the amount stipulated in this note, but only received the amount of $30, which they contend was the amount of this transaction.” It is complained also that the court failed to explain what was meant by “preponderance of evidence.” Held:

1. “Where a payee of a note sues the maker, and the defendant in his plea admits the execution of the note and that the plaintiff is the legal holder, and sets up a defense to the same, the burden is upon the defendant to establish his defense.” Higdon v. Williamson, 140 Ga. 187 (2) (78 S. E. 767); Citizens Bank of Tifton v. Timmons, 15 Ga. App. 815 (4) (84 S. E. 232). Where, however, the execution of the note is not admitted, but on the contrary is denied on oath by a plea of non ' est factum, the burden remains upon the plaintiff to prove by a preponderance of the evidence the execution of the instrument as sued on, although in such a case only slight evidence of its execution is suffi'eient to justify its admission in evidence. Bank of Norwood v. Chapman, 19 Ga. App. 109 (6) (92 S. E. 225).

Decided November 27, 1923.

Complaint; from Cobb superior court—Judge Blair. April 28, 1923.

Herbert Clay, for plaintiffs in error.

Morris & Hawkins, contra.

2. In the instant case, since there is a sworn plea of non est factum, denying generally the execution of the note sued on, and setting up that the only note which the defendants signed and gave to the plaintiff was one executed in a much less stated amount, it follows that its introduction in evidence did not relieve the plaintiff of showing, by a preponderance of the evidence, that the note sued on was signed by the defendants as charged in the petition. However, since each of the defendants admitted on the stand that the particular note sued on was in fact signed by them, this was equivalent to an abandonment of their plea of non est factum. In order for the defendants to have attacked the terms and the provisions of the written instrument sued on, they would have had to enter a plea of non est factum (which they did, but which was abandoned) ; or else have either pleaded that subsequent to its execution the instrument was intentionally, fraudulently, and materially altered, by a person claiming an interest thereunder, and how altered (see Civil Code of 1910, §§ 4295, 4297; Gwin v. Anderson, 91 Ga. 827, 828, 18 S. E. 43; Mozley v. Reagan, 109 Ga. 182, 183, 34 S. E. 310; Jewell v. Walker, 109 Ga. 241, 245, 34 S. E. 337), or that the note had been fraudulently procured. Neither of these latter defenses was entered. If a plea setting up such an alteration had been filed on oath, and the material alteration thus complained of was in fact apparent upon the face of the instrument, there would have been no presumption as to when it was put there, but the plaintiff would have been put upon proof (Winkles v. Guenther, 98 Ga. 472, 474, 25 S. E. 527; Colt Co. v. Butler, 29 Ga. App. 396, 115 S. E. 503) ; but where, as here, in the absence of any such plea of alteration, and in the absence of anything contained in the record going to indicate the presence of any such apparently material alteration, a prima facie case was made for the plaintiff when the note was admitted in evidence, the charge complained of was not error. See also, in this connection, Bryant v. Ga. Fertilizer Co., 13 Ga. App. 448, 449 (79 S. E. 236).

4. In the absence of a proper and timely written request so to do, it is not error to fail to explain to the jury what is meant by the preponderance of the evidence. Mallary v. Moon, 130 Ga. 591 (2), 595 (61 S. E. 401); Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (4) (71 S. E. 887); Terry Shipbuilding Corp. v. Gregory, 26 Ga. App. 450 (6) (106 S. E. 803); Day v. Bank of Sparks, 26 Ga. App. 718 (107 S. E. 272).

Judgment affirmed.

Stephens and Bell, JJ., coneur.


text:
    14639.
    GREENE v. MATTHEWS.
    1. On the trial of a claim to property levied upon under a common-law execution the plaintiff in ff. fa. may shift the burden of evidence to the claimant by showing that subsequently to the rendition of the judgment and at the time of the levy the defendant was in possession of the property. Stephens v. Southern Cotton Oil Co., 147 Ga. 410 (1) (94 S. E. 245); Civil Code (1910), § 5170; Lamkin v. Clary, 103 Ga. 631 (1) (30 S. E. 596).
    2. Where a judgment was rendered against a defendant in the county of his residence, but the fi. fa. issuing thereon was not entered upon the 'general execution docket thereof within 10 days from the date of the judgment, one who purchased from the defendant after the judgment but before the record’ of the fl. fa. on the execution docket, and who claims that by reason of these facts the judgment is not a lien upon the property, must, in order to relieve the property from the lien of the judgment, carry the burden of proving that he acted in good faith and without notice in making the purchase. Eason v. Vandiver, 108 Ga. 109 (1) (33 S. E. 873); Ray v. Atlanta Trust & Banking Co., 147 Ga. 265 (6) (93 S. E. 418).
    3. If a defendant sells his property with the purpose and intent to prevent his creditors from enforcing their claims against it, the sale will be void as to him; and if at the time of the sale the purchaser has reasonable ground to suspect that such is his object, the sale will be void also as to the purchaser. Civil Code (1910), § 3224 (2); Virginia-Carolina Chemical Co. v. Hollis, 23 Ga. App. 634 (3) (99 S. E. 154); Smith v. Wellborn, 75 Ga. 799.
    4. The fact that a suit was pending or that a judgment had been rendered against the vendor at the time of the sale is a circumstance which the jury may have a right to consider on the trial* of the issue as to whether the sale was made with the intent on the part of the vendor to defraud his creditors, as is also the fact of the insolvency or near insolvency of the vendor at the time of the sale. See Barber v. Terrell, 54 Ga. 146; Tillman v. Fontaine, 98 Ga. 672 (5), 677 (27 S. E. 149); Virginia-Carolina Chemical Co. v. Hollis, 23 Ga. App. 634 (4) (99 S. E. 154); Hollis v. Virginia-Carolina Chemical Co., 27 Ga. App. 103 (1) (107 S. E. 554).
    5. The possession of property, real or personal, remaining with the vendor after an absolute conveyance is evidence of fraud. Peck v. Land, 2 Ga. 1 (2); Fleming v. Townsend, 6 Ga. 103 (1); Smith v. McDonald, 25 Ga. 377; Willingham v. Smith, 48 Ga. 580 (3); Stephens v. Southern Cotton Oil Co., 147 Ga. 410 (2) (94 S. E. 245).
    6. “On-the trial of a claim case where the issue is the bona fides of the transfer of property by the defendant in execution to the claimant, and there are circumstances which if not satisfactorily explained may be regarded as badges of fraud, it is for the jury and not the judge to pass upon such issues.” Kelley v. Stovall, 138 Ga. 186 (75 S. E. 6); Stephens v. Southern Cotton Oil Co., supra; Atwood v. Edenfield, 150 Ga. 198 (103 S. E. 170).
    7. The evidence in the instant case raised an issue, for determination by the jury, whether the sale was bona fide, or whether the vendor’s purpose and intent in making it was to defraud tlie plaintiff creditor, and, if sucli fraudulent purpose did exist, whether the claimant had notice thereof or reasonable cause to suspect the same. There were also circumstances sufficient to raise an issue as to whether the claimant had actual notice of the judgment, though the fi. fa. was not recorded in time to give constructive notice. If so, the actual bona lides would have become immaterial. Notice sufficient to excite attention and put a party on inquiry is notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, is equivalent to knowledge, in fixing the rights of parties. Civil Code (1910), § 4530. The court therefore erred in directing a verdict for the claimant. See Nicol v. Crittenden, 55 Ga. 497 (3); Planters & Miners Bank v. Willeo Cotton Mills, 60 Ga. 168 (1).
    Decided November 27, 1923.
    Levy and claim; from Fulton superior court—Judge Ellis. April 5, 1923.
    On October 7, 1922, a fi. fa. was issued in favor of Mrs. Luella Greene against Charles Marion Greene, for $405 principal, besides costs, founded upon a judgment dated the previous January 17. The fi. fa., on the day of its issuance, was recorded, and was levied upon an automobile, to which W. C. Matthews filed a claim. Upon the trial of the issue thus formed, the court, at the conclusion of the evidence, directed a verdict in favor of the claimant. The plaintiff in fi. fa. excepted. There was evidence authorizing the inference that the property was found in the possession of the defendant at the time of the levy, though this is not shown in the entry.
    The testimony of the claimant was as follows: “The automobile levied on in this case is my property. This is the bill of sale Mr. Greene executed to me. This certificate is from secretary of state’s office, showing change of license number to me. The application was made on the same date that I bought the car. These cheeks paid for purchase price of the car. The writing ‘on car’ was on check at the time it was written. I paid purchase price of $400. About November 1, 1921, I loaned Mr. Greene $50. About the middle of December I let him have $50 more. These loans were in cash. About March he wanted more money. I couldn’t see my way clear to let him have it. He owed me $100 and couldn’t pay it. I couldn’t let him have any more. He said, ‘That will force me to dispose of my automobile. How about you buying it ?’ Said he would sell it to me for $400. I told him I could not give him all the money at that time, ‘but can pay for it and can give you some money now.’ He said, 'If you will let me have the car, and if you will buy the car, I will take $50 now, and balance as I need it, or as you can raise it.’ So in June I gave him $50 more. He executed to me a bill of sale in March. In June I gave him the other $50. We agreed in March that I would let him use the car on the road, he to take care of it and pay rental for it while using it. He was a traveling salesman. He was to pay for gas and keep it all doped up, and to pay rent at a dollar a day while he was on the road. Saturdays while I was at work he used it to run around town. He used it for nothing. He paid some money down on the rental of the car, and in September, when we made final settlement, he was owing me $50 back rental, and I gave him two checks, one for $65 and one for $85. That was final payment representing $150. I went to the rubber company and paid bill for tires that are on car now. I have not sold car back to Greene. He first borrowed $50; that was around 1st or 15th of November. That was in cash; then $50 around 15th of December. He never paid these sums back. He never gave me a note for it,—just a verbal agreement. I have been knowing Greene about three years. I was living at 391 Peachtree street when I first loaned him money. He was living at the same place. I took no note or due bill. We were friends together. I took no note, just a verbal agreement between us two. He wanted more money in March. I let him have $50. That was when I purchased the car. It was agreed that the other $100 should go on the purchase price of the car; that made $150 I let him have. No agreement was made that when he paid me back I would let him keep the car. I rented him the car, he traveled with it during the week and used it on Saturdays if I didn’t want it. Occasionally he used it on Sunday. I let him have more money in June. I let him have $50 in cash in March.I had this bill of sale here for the car. I let him have it the same day in March the bill of sale was written. I don’t know who wrote the paper. Mr. Greene came down to the office with the paper. I was not there when it was written. I don’t know who he had to write it. He signed it in my presence. I knew he was separated from his wife; didn’t know anything about alimony. I didn’t know at that time he was paying or supposed to be paying alimony for his wife and children, but I supposed he was. He and I are friends, boarding at same place. He discussed his domestic affairs very little. I didn’t know the first money lie borrowed was about the divorce. I knew he had a divorce suit pending. I let him have $50 more in June. He had paid me nothing. I was due him money at that time. TTp till June he didn’t owe any rent; he had been paying some along. I don’t know what he had paid. He would pay me in money. I don’t know if he has a checking account. I didn’t let him have any more before September. We kept the car at various places, a while on Currier street, a while on Ivy, and a good bit of time in a place the side of the hotel. Greene and I rooméd together, started rooming together in January, 1922. The car was in front of the house when levied on. He drove me to the office that morning, then drove it back, and then it was levied on.”
    The claimant tendered in evidence also the bill of sale to the automobile from Greene to himself, dated March 21, 1922, the two checks for $65 and $85 respectively, dated September 2, 1922, a memorandum of account which Matthews claimed he had paid for repairs, and also a writing from the secretary of State showing a transfer to Matthews of the automobile license. The defendant in fi. fa. was a witness for the claimant and corroborated the claimant’s testimony.

      Branch & Howard, James A. Miller, for plaintiff.

      Louis H. Foster, for claimant.
   Bell, J.

(After stating the foregoing facts.) It appears by the evidence that the fi. fa. was based upon a judgment for alimony. It is not disclosed by the record whether there had been a verdict. It may be that the fi. fa. was issued for arrears in the payment of temporary alimony awarded by the judgnient. It is not clear whether the alimony was temporary or permanent. At any rate the fi. fa. appears to have been issued upon a mere money judgment, and no question is involved as to whether the property levied upon was affected by any final verdict or judgment in rem. It appears that at the time of the sale the defendant was hard pressed; a judgment had been rendered against him for alimony, and he was having to borrow money. It was inferable that he had but little, if any, other property besides the automobile, of which he remained in possession after the sale. A part of the rents due by him to the claimant for the use of the car was applied as part payment of the purchase price. The defendant and the claimant had been intimate friends for some time, rooming together. It appears that the claimant “supposed” that the defendant was “supposed” to be paying alimony. Alimony is oftentimes, if not usually, paid under judgment. The claimant knew that the defendant had a wife and children, from whom he was living apart.

Applying to the evidence the principles announced in the head-notes, we think the .case was one for submission to a jury.

Judgment reversed.

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


text:
    14642.
    Woodall v. Exposition Cotton Mills.
    Decided November 27, 1923.
   Bell, J.

1. When a case is sounded for trial, the parties should immediately announce ready or move to continue. If five minutes should elapse before the announcement or motion, the plaintiff’s case may be dismissed. Superior Court Rule 21, Civil Code (1910), § 6280.

2. Where a defendant has only pleaded matter which goes to defeat the plaintiff’s cause of action, and does not ask for the recovery of money or relief against the plaintiff, and the plaintiff fails to appear and prosecute his case, it is error do allow the defendant to prove his defense and to take a verdict in his favor, and thus procure an adjudication that the plaintiff should not recover. “Where a plaintiff fails to appear and prosecute his case, it is, of course, the right of the defendant to move to have the same dismissed for want of prosecution; and this is the only proper course to be pursued, unless there has been filed a plea of set-off, or some other defense in the nature of a cross-action against the plaintiff. In that event, it might be the right of the defendant to proceed to prove his counter-claim and take judgment thereon; but even then the merits of the plaintiff’s cause of action would not be affected by the rendition of a judgment in the defendant’s favor upon his counter-claim. It does not appear from the record now before us, however, that there was any such plea or defense in the present case; and consequently, allowing the defendant to enter upon a trial in the absence of the plaintiff” was improper and manifest error. Bateman v. Smith Gin Co., 98 Ga. 219 (25 S. E. 422); Rousch v. Green, 2 Ga. App. 112 (2) (58 S. E. 313). See also Civil Code (1910), §§ 4348, 4353, 5548; Green v. Green, 138 Ga. 581 (2) (75 S. E. 603); Harris v. Hines, 59 Ga. 427; Evans v. Sheldon, 69 Ga. 100 (2).

3. In this case, when the complainant for damages for .a tort failed to appear, the defendant was allowed to prove his plea of settlement, or accord and satisfaction, and the jury thereupon returned a verdict in favor of the defendant. Held, that the plaintiff’s motion, made and prosecuted during the term, to set aside the verdict and the judgment entered thereon, should have been sustained.

Judgment reversed.

Jenlovns, P. J., and Stephens, J., eoneur.

Action for damages; from Fulton superior conrt—Judge E. D. Thomas. April 13, 1923.

A. II. Davis, for plaintiff.

McDaniel & Neely, for defendant.


text:
    14655.
    Watkins Company v. Harrison et al.

   Bell, J.

1. A special demurrer interposed to the petition, on the ground that the demurrants were guarantors and not sureties, and were therefore not suable with the principal defendant, was overruled, and no exception having been brought to that ruling, it stands as an adjudication—the law of the case — that the demurrants are sureties, regardless of the true character of their obligation, under the general law.

2. Other grounds of demurrer were likewise overruled, without exception, while a demurrer that the petition does not set forth a cause of action, and that the contract sued on does not indicate with reasonable certainty the amount for which the demurrants agreed to become liable, and is “too uncertain to give a right of action against these defendants,” was sustained, the petition was thereupon dismissed and the plaintiff excepted. The only question for decision is whether the agreement -was void for want of mutuality, or for uncertainty. Held:

(a) Where a contract, as in this case, provides that the seller will sell and deliver to the buyer any and all goods of the classes handled by the seller, at the usual and customary wholesale prices, in such reasonable quantities as the buyer may require for sale by him for the period of two years from the date of the contract, in a territory comprising a named county, except the incorporated municipalities therein, and where it further appears in the contract that the buyer is an itinerant salesman or peddler, who is expected to canvass the designated territory for the purpose of reselling the goods purchased of the seller; that the purchaser promises and agrees that as soon as practicable after the goods are received by him he will make “a thorough and personal canvass of said territory at least four times a year, at his own cost and expense, and to provide a good team and proper wagon and outfit therefor, and to sell said goods, or so much thereof as possible, and at all times during said term,” and where, in pursuance of the contract, a certain quantity of goods are sold and delivered to the buyer and so accepted by him, the contract is sufficiently definite and certain to be enforceable in a subsequent action for the purchase price of the goods so delivered and accepted. If not so at first, it is rendered so when the goods are sold, delivered, and accepted in pursuance of the agreement.

(b) Sureties or guarantors for the buyer in such a contract, who do not repudiate or withdraw their agreement until after the goods have been sold and delivered and accepted by their principal, cannot then escape liability on the ground that'the amount for which they agreed to become liable is so uncertain and indefinite as to preclude a right of action against them.

Decided November 27, 1923.

Complaint; from Lincoln superior court—Judge Shurley. April 24, 1923.

G. J. Perryman, for plantiifs.

Burnside & McWhorter, for defendants.

(c) That is certain which is capable of being made certain by the agreement. Measured by this rule, the contract was sufficiently definite. Of. Civil Code (1910), § 4218. Moreover, the principle is here applicable that “although an offer to sell goods is so indefinite as to the quantity of the goods to be sold as not to be capable of enforcement, even after a general acceptance of the terms of the offer by the party to whom it is made, yet where the latter, after such an acceptance, actually orders a specified quantity of the goods, which order is accepted by the proposer, he is bound to furnish and the party ordering is bound to accept and pay for all of the goods so ordered.” McCaw Mfg. Co. v. Felder, 115 Ga. 408 (3) (41 S. E. 664). Also, if the agreement was originally unilateral, not binding the “buyer” 'to purchase, mutuality was supplied when he did buy. “If parties agree that one will buy and the other sell articles of a certain character at stated prices, without specifying any number or amount of such articles, leaving the purchaser to give orders, the giving of an order or orders for certain things / included in the offer to sell, before its withdrawal or termination, makes a contract as to the things so ordered, and the contract is no longer unilateral as to them.” Buick Motor Co. v. Thompson, 138 Ga. 282 (2) (75 S. E. 354).

(d) The averments of the petition would 'show the principal defendant liable, and if the contract was sufficiently definite to be enforceable . against him, it was likewise sufficient as against the other defendants who by their agreement became responsible for his debt, whether as guarantors or sureties. The court erred in sustaining the demurrer. In view of the allegations of the petition, the question does not arise on general demurrer as to whether the demurrants may show as a defense that the goods were furnished and sold to the principal defendant in unreasonable quantities.

Judgment reversed.

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


text:
    14663.
    Sims v. Nelson.
   Jenkins, P. J.

The plaintiff borrowed $200, and executed notes and mortgage for that amount. It appears from the evidence that the defendant was to receive from this amount $30 for negotiating the loan, to “cover all brokerage and expenses.” Under part of the evidence, the defendant’s relation to the borrower could be taken as merely that of agent or broker in obtaining the loan. Under the testimony of one of the witnesses, however, “he bought the notes in question from the defendant.” The defendant himself testified that he “agreed to negotiate” the loan. Copies of the notes are not contained in the record, but the mortgage shows that it was executed in blank, with no person named as mortgagee. Under such evidence, the defendant might thus be treated as the lender. The borrower actually received in cash $110 from the defendant at the time of the transaction, and accepted for the remainder of the proceeds of the loan a due-bill for $53 in lieu of cash. This due-bill being unpaid on demand, the plaintiff borrower tendered back to the defendant the $110 received in cash, and demanded the return of the notes and mortgage, which, however, had previously been discounted or sold to a third person. Plaintiff brought trover in the municipal court of Atlanta for the recovery of these papers. The trial judge entered a money judgment in her favor. The defendant, without a motion for new trial, brought the case directly by certiorari to the superior court, which overruled the certiorari. Held:

1. A party in the municipal court of Atlanta has the right to proceed directly by certiorari to the superior court from an adverse finding and judgment, without making in the municipal court a motion for a new trial, and to attack the finding- and judgment as contrary to law, as being without any evidence to support it. Johnston v. Brenau College, 146 Ga. 182 (1, 2), 187 (91 S. E. 85); Walker v. Cliff Drug Co., 23 Ga. App. 722 (3) (99 S. E. 393); Dunlop Milling Co. v. Collier, 19 Ga. App. 725, 727 (92 S. E. 296). Where the evidence is conflicting, such a petitioner for certiorari, who has made in the municipal court no motion for a new trial, cannot by direct certiorari attack the finding as merely contrary to the weight of the evidence. Gresham v. Lee, 152 Ga. 829 (4), 834-836 (111 S. E. 404). But where, as here, there is an assignment that the court erred “as a matter of law,” because a finding for the defendant was demanded under the evidence, for the ■ reasons stated, and this assignment is supported by the record, it is error to overrule the certiorari. '

2. “The maker of a promissory note, delivered on condition precedent to the payee, may recover the note in trover from the payee, where there has been a breach of condition by the latter. The fact that the payee, in violation of the condition, has transferred the note to an innocent holder for value does not defeat the maker’s cause of action. The unauthorized transfer, being a conversion, cannot be a defense to a suit in trover.” Thompson v. Carter, 6 Ga. App. 604 (3) (65 S. E. 599). But where, as here (treating the defendant as the lender of the money), the borrower did not execute the notes and mortgage and deliver them to the lender on condition or in contemplation that the full amount of the loan should be contemporaneously paid over in cash, but where, on the contrary, it appears that the plaintiff borrower parted with the title and possession of the negotiable instruments in accordance with the effect of a written agreement whereby credit was expressly extended to the defendant for a portion of the proceeds of the loan, and that the defendant, while in such lawful possession, negotiated the instruments in due course of trade, an action of trover will not lie, for the reason that, in order to maintain such an action, title or the right of possession must be in the plaintiff at the time the suit . is instituted, and a conversion by the defendant must be shown. Hall v. Simmons, 125 Ga. 801 (2) (54 S. E. 751); Prater v. Painter, 6 Ga. App. 292 (64 S. E. 1003); Groover v. Iler, 1 Ga. App. 77 (57 S. E. 906); Cox v. Fairbanks Co., 29 Ga. App. 538 (3) (116 S. E. 43).

Decided November 27, 1923.

Rehearing denied February 23, 1924.

Certiorari; from Fulton superior court—Judge Bell. April 3, 1923.

W. I. Heyward, for plaintiff in error.

Boy Lewis, contra.

(а) Nor would the rule be different were the defendant to be treated, under the evidence, as the agent or broker of the plaintiff borrower, as contended by the plaintiff, where it appears, not only that the defendant actually negotiated the instruments with the full authority of the plaintiff, but that upon his so doing the plaintiff accepted from the defendant agent or broker the full proceeds arising from the transaction, partly in cash and partly in the form of the defendant’s due-bill.

(б) Under the undisputed evidence, in either aspect of the case, whether the defendant be treated as the agent or broker of the plaintiff or as the lender of the money, a verdict being demanded for the defendant, it was error not to sustain the certiorari.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    14721.
    Jernigan v. Georgia Railway & Power Company et al.

   Jenkins, P. J.

“Where a petition plainly shows on its face an absence of liability on the part of the defendant, either because the injury was occasioned by the plaintiff’s own negligence, or because by the exercise of ordinary care he could have avoided the consequences of defendant’s negligence, or because the acts of negligence charged against the defendant could not legally constitute the proximate cause of the injury, it can be attacked by general demurrer as failing to set forth a cause of action.” Rome Ry. & Light Co. v. King, 30 Ga. App. 231 (117 S. E. 464 (2)).

2. In looking to the safety of their passengers, it is the duty of the operatives of a street-railway company to exercise proper caution, not only in enabling passengers to safely leave their car, but to select a reasonably safe place at which they may alight. If by the company’s direction passengers be landed when and where they might reasonably be exposed to unusual and unnecessary peril, the company would be guilty of negligence, and for such a tort might be liable for any injury proximately resulting therefrom. But in an action by a passenger, brought jointly against such a company and the alleged reckless driver of an automobile which is alleged to have run against the petitioner soon after he had left the car, the mere fact that the petitioner had been directed to leave the car from its left side could not be accounted negligence on the part of the company, in the absence of any further and additional allegation indicating how or why. See, in this connection, Rome Ry. & Lt. Co. v. King, supra.

3. Even were it possible to construe the petition as thus setting up a valid ground of possible negligence, the pleadings of the plaintiff absolve the defendant from liability, for the reason that the- petition shows on its face that the defendant had fully complied with its obligation to exercise due and proper caution in permitting the plaintiff to alight and in selecting a reasonably safe place in which to do so, since it appears that the accident did not occur at the time and place at which the passenger was landed, but “while he was passing from the street-car to the sidewalk.” The duty devolving upon a street-railway company to provide a reasonably safe place at which its passengers may alight does not render it responsible for the hazards occasioned by the acts of other persons, incident to crossing over, at a proper place for crossing, to the opposite sidewalk. Macon Ry. &c. Co. v. Vining, 120 Ga. 511, 513 (48 S. E. 232); Augusta, Ry. Co. v. Glover, 92 Ga. 132 (1), 146, 147 (18 S. E. 406); Ga. Ry. & Elec. Co. v. Norris, 135 Ga. 838 (70 S. E. 793); Ga. Ry. & El. Co. v. McAllister, 126 Ga. 447 (54 S. E. 957, 7 L. R. A. (N. S.) 1177).

Decided November 27, 1923.

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

John 8. Uighsmiih, for plaintiff.

Colquitt & Conyers, Alexander & Meyerhardt, for defendants.

4. The court, on demurrer, did not err in dismissing the suit as against the street-railway company.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    14738.
    Lummus v. Hopkins.
   Jenkins, P. J.

An automobile was sold for cash and on credit installments, evidenced by a duly recorded conditional bill of sale reserving title in the vendor until payment of the purchase price. The car was seized, condemned, and sold on account of unlawful transportation of liquor, under the provisions of section 20 of the act approved March 28, 1917 (Act 1917, Ex. Sess., pp. 7, 16; 11 Pai-k’s Ann. Code Supp. 1922, § 448(oooo) ), without notice to the vendor as to the proceedings and sale. A balance remained due to the original vendor of the automobile, and he brought trover for it against the last purchaser. The ease- was tried under an agreed statement of facts, essentially as stated above, with this additional agreement: “All legal questions in this case are waived, leaving for determination only the following: Where unpaid purchase-money for an automobile is secured by a contract retaining title, and the same is recorded, and where thereafter the automobile is seized while transporting liquor and condemned and sold under the prohibition act of 1917, and without any service of any notice on the seller, or any actual notice to him, is the title of the purchaser of the automobile at a sheriff’s sale under condemnation superior to that of the original vendor for his unpaid purchase-money? If the' above question be determined in the affirmative, a judgment should be rendered . . for the defendant. If it is decided in the negative, a judgment should be for the plaintiff, for $357.30.” The trial court found for the plaintiff, and a certiorari from this judgment was overruled. Meld:

1. The condemnation provisions of the Georgia prohibition act of 1917, unlike the forfeiture statutes of the United States (U. S. Rev. Stat., § 3450; U. S. Comp. Stat. 1918, § 6352; J. W. Goldsmith Jr. Grant Co. v. U. S., 254 U. S. 505), require knowledge by the owner of the unlawful use of the vehicle engaged in the transportation, and the burden of showing such knowledge is upon the State. Lang v. Hitt, 149 Ga. 667 (1, 2) (101 S. E. 795); Citizens Trust Co. v. State, 26 Ga. App. 750 (107 S. E. 274).

2. The condemnation clauses of the State prohibition act provide that a copy of the condemnation petition “shall be served upon the owner or lessee if known, and if the owner or lessee is unknown notice of such proceedings shall be published once a week for two weeks in the newspaper in which the sheriff’s advertisements are published.” In the agreed statement of facts in this case it is stipulated that no “service of any notice” of the condemnation proceedings was made upon the plaintiff, and that he had “no actual notice” of the same. While the record does not show who was served with the condemnation petition, under the agreed facts the lack of “service of any notice” must be taken to mean a want of service by the publication provided by the statute, as well as of personal service. There can be no presumption against this plaintiff in favor of the judgment, to the extent that all necessary proof had been made in the proceeding to show knowledge upon his part of illegal use of the vehicle, where the statement of facts affirmatively shows that he was not a party to the proceeding and had neither service nor actual knowledge thereof. Consequently, the question does not arise as to whether a plaintiff owner can maintain trover against the purchaser at a condemnation sale without first directly setting aside the condemnation judgment, or whether he could set aside such a judgment in a case where there had been due publication of the notice provided by the act for the purpose of serving an unknown owner. But see Lawless v. Orr, 122 Ga. 276 (1) (50 S. E. 85); McLennan v. Graham, 106 Ga. 211 (32 S. E. 118); Campbell v. Hutcheson, 23 Ga. App. 111 (1) (97 S. E. 555); Smith v. Spencer-Dowler Co., 24 Ga. App. 235, 236 (100 S. E. 651). In the instant case it is only necessary to hold that, it being the purpose of the prohibition act to protect owners, holders of reservations of title and lienholders, without knowledge of the unlawful use of their property and without any service or actual knowledge of condemnation proceedings, and it appearing that the plaintiff had neither such service nor knowledge, had done nothing to mislead the purchaser at the sale, and had a valid recorded instrument reserving title, the trial judge properly found for the plaintiff, and the superior court properly overruled the certiorari. Shrouder v. Sweat, 148 Ga. 378, 379, 380 (96 S. E. 881); Whites v. State, 23 Ga. App. 174 (98 S. E. 171). In Martin v. English, 23 Ga. App. 484 (98 S. E. 505), relied on by the defendant, it was merely held that trover could not be maintained against a sheriff while the property was being lawfully held by him pending determination of condemnation proceedings, because the property >vas then in custodia legis. To the same effect is Bernstein v. Higginbotham, 148 Ga. 110, 112 (96 S. E. 1).

Decided November 27, 1923.

Certiorari; from Fulton superior court—Judge Humphries. May 18, 1923.

Walter A. Sims, J. B. Berman, for plaintiff in error.

Douglas & Douglas, W. 0. Henson, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    14746.
    Dyer, executrix, v. Beasley.
    Decided November 27, 1923.
    Complaint; from Whitfield superior court—Judge Tarver. May 5, 1923.

      William B. & W. Gordon Mann, for plaintiff in error.

      George G. Glenn, Oliver N. Hardin, contra.
   Bell, J.

This was a suit by a daughter against the executrix of her father’s estate for personal services rendered and for food, medicines, and medical services furnished him or procured by her for him during his last illness. There were facts and circumstances in evidence sufficient to authorize the inference that both the plaintiff and her father contemplated at the time of the transactions that she should be compensated by him or out of his estate. There was, in addition, even some proof of an express contract to that effect. See Chatham Co. v. Painter Eng. Co., 28 Ga. App. 383 (1) (111 S. E. 82). The verdict found for the plaintiff (for considerably less than the sum sued for) was amply supported, and, no error of law being complained of, the judgment of the trial court in overruling the motion of the defendant for a new trial will not be interfered with. See, in this connection, Phinazee v. Bunn, 123 Ga. 230 (1) (51 S. E. 300).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.