author: Jenkins, P. J.

text:
    15461.
    STRACHAN SHIPPING COMPANY v. HAZLIPHOOD COTTON COMPANY.
    1. A contract signed by one who adds after his signature the word “agent” is not necessarily his individual undertaking. The contrary would be the case if the contract showed on its face that it was in fact made in behalf of another, whose identity was disclosed by the instrument, or if, in a suit based thereon and sounding in tort or in contract, it should be made to appear that the intention of the parties was that thereby the signer as agent was binding a disclosed principal to the obligations of the contract. Where agency for a disclosed principal is thus made to appeal', the right of action is confined to the parties and privies to the contract, according to its true intendment; and in that event there can be no recovery against the agent thus acting for a disclosed principal.
    2. Even though, under the evidence, it might be assumed that the defendant purported to act for itself as principal in making the contract of affreightment, the plaintiff can not, in a suit for damages in tort on account of negligence in the performance of the defendant’s duties arising out of the contract, recover the full market value of the goods in good order at the time and place set for delivery under the contract of affreightment, unless it be shown that the goods were received in good order by the carrier. This not being shown, the verdict for the plaintiff was not authorized by the evidence. The fact that a prior bill of lading, issued by a railway company, under which the goods were to be carried to the port of shipment, contained a recital that the; goods were in good order would have no probative value against the defendant, since the defendant was not a connecting carrier under thai contract, and the only obligation it assumed was by an independent agreement.

      Contracts, 13 C. J. p. 701, n. 63.
    Evidence, 22 C. J. p. 199, n. 36.
    Shipping, 36 Cyc. p. 206, n. 30; p. 265, n. 33; p. 278, n. 36.
    Torts, 38 Cyc. p. 433, n. 59.
    Trial, 38 Cyc. p. 1632, n. 6; p. 1711, n. 19; p. 1717, n. 24.
    Agency, 2 C. J. p. 670, n. 13; p. 671, n, 14; p. 674, n. 42; p. 675, in 46,
    Parties, 30 Cyc. p. 30, n. 78.
    Shipping, 36 Cyc. p. 276, n, 9 New.

      3. Again, assuming that under the evidence the defendant might have made the affreightment contract as principal, and assuming (but not deciding) that under the plaintiff’s evidence the plaintiff had parted with the title to the property at the time the affreightment contract was entered upon, it must be held that in an action for tort, based on negligence in performance of the duties imposed by the contract, the maker of the contract has the right to complain of negligence in the performance of the duties imposed by the contract, rather than some other person, not a party to the contract; and this is true because proof that the plaintiff had parted with his title at the time the contract was made would not establish agency on the part of the plaintiff in the making of the contract. See' Garter v. Southern Ry. Go., Ill Ga. 38 (36 S. E. 308, 50 L. R. A. 354); Civil Code (1910), § 4408; 30 Oye. 30 (78).
    4. The remaining grounds of exception, relating to the exclusion or admission of evidence, the failure to charge as requested, and the charge as given, are all dealt with in the opinion, on the assumption that the defendant might, under the evidence, have contracted as a principal.
    Decided February 19, 1926.
    Action for damages; from Chatham superior court—Judge Meldrim. February 25, 1924.
    llazlip-Hood Cotton Company, cotton merchants, brought suit against Strachan Shipping Company, in the superior court of Chatham county, to recover the value of six bales of cotton which it alleged the defendant had received at Brunswick, Georgia, in the year 1919, to be exported to Liverpool, England, but which, “by and through the carelessness and negligence of its [the defendant’s] agents and seiwants, was lost.” It was alleged also that,, “by reason of defendant’s negligence,” the plaintiff was damaged in the sum sued for, and that the defendant “negligently injured and damaged” the plaintiff in that sum, besides interest. By amendment the plaintiff struck from the petition the allegation that the cotton was lost, and inserted the following: “Since the filing of this suit petitioner has discovered that the defendant, wrongfully, negligently, and in violation of tire duty and obligation owing by it to petitioner, on a day anti date unknown to petitioner, but subsequent to June 1st, 1920, shipped said six bales of cotton to Savannah, Georgia, and there sold the same and delivered the proceeds of the sale to the United States railroad administration, director general of railroads, without any authority from petitioner so to do, and thereby converted said cotton to its (defendant’s) own use.” To the allowance of this amendment the defendant filed exceptions pendente lite. The defendant demurred to the petition, on the grounds, that it did not set forth a copy of or the substance of the bill of lading involved in the case, and that it did not set forth the written contract of the defendant and did not give its terms. The demurrer was overruled, and there was no exception to this ruling. The defendant in its answer made a general denial of liability. The trial of the case resulted in a verdict for the plaintiff for $854.80, the amount sued for. The defendant’s motion for a new trial was overruled, and the movant excepted.

      Adams & Adams, for plaintiff in error.

      Hitch, Denmark & Lovett, Stella Akin, contra.
   Jenkins, P. J.

The Supreme Court, in answer to questions certified to it in this case (161 Ga. 480), adjudicated that the amendment to the petition did not set forth a new and different cause of action, and that both the original petition and the petition as amended constitute an action in tort arising out of the negligent breach of a contract, but not an action in trover. Not being an action in trover, the plaintiff must recover, if it recovers at all, by proving a negligent breach of the defendant’s duties arising out of the contract; and consequently, if the defendant did not make the contract for itself, the plaintiff could not recover under the form of action brought and maintained. It is the rule that “If the employer is in fact an agent and acts with the authority of an undisclosed principal, either he or such principal may be held liable at the election of the opposite party.” Willingham v. Glover, 28 Ga. App. 394, 396 (3) (111 S. E. 206). The first question in the instant case, therefore, is whether the defendant contracted for itself, or on behalf of a disclosed principal. The contract being signed in its own name, with merely the word “agent” appended thereto, the presumption would ordinarily arise that it would be bound for the contract, on the theory that its principal was not disclosed. But such a presumption is a rebut-table presumption, and it is permissible to show that even though a simple contract was signed by an agent in his own name, the intention of the parties was that the agent’s principal should be bound by the contract and not himself. In the case, of Allen v. Montgomery, 25 Ga. App. 817, 820 (105 S. E. 33), this court used the following quotations: “ ‘Contracts not under seal, other than negotiable instruments, require but little observance of mere form. The intention of the parties is the prevailing consideration in. the construction of this class of contracts; and the rule is well established that, if the nature and circumstances of the transaction show that the intention was to bind the principal and not the agent, effect will be given to such intention, though the agent signs his own name merely.’ 1 Am. & Eng. Enc. of Law (2d ed.), 1050, 1051. See 2 C. J. 674; Merchants Bank of Macon v. Central Bank of Georgia, 1 Ga. 418 (44 Am. Dec. 665); Cleveland v. Stewart, 3 Ga. 283; Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700, 709 (50 S. E. 1008).”

The plaintiff in error takes the position that in making the affreightment contract it necessarily acted as an agent of the emergency-fleet corporation, or the United States shipping board, and that the courts must take judicial cognizance that this was the only capacity in which it could have acted at the time of the contract, in view of the war-time legislation of Congress. We have carefully considered the act of Congress of September 7, 1916 (39 Stat. 728 et seq., Comp. Stat. 1918, § 8146a et seq.), relating to the formation of the United States shipping board, out of which grew the emergency-fleet corporation; the various acts of Congress amendatory thereof, and also the case of The Lake Monroe, 250 U. S. 246 (39 S. Ct. 460), treating of such acts, and have arrived at the conclusion that the culmination of the powers and exercise thereof in and by the fleet corporation did not ipso facto disarm all shipping interests and owners of vessels in this country from doing foreign business and making contracts therefor as principals. This act and the conduct of the President thereunder did not ipso facto, we think, have the sweeping effect thus claimed for them of relegating all such shipping interests and owners to the category of bare agencies for the government. The act seems to have provided that these agencies of the government should have the power to requisition any or all of such facilities for foreign trade; and that it would remain with them as to vessels and other facilities which they would so requisition for service to the government in such trade. In the case of The Lake Monroe, 250 U, S. 252 (supra), the court said: “In this state of affairs, Congress embodied in the 'Urgent Deficiencies Appropriation Act of June 15, 1917, c. 29, 40 Stat. 182, a clause entitled ‘Emergency Shipping Fund,’ which conferred upon the President broad powers of control over contracts for the building, production, or purchase of ships or material, and among others the power to purchase, requisition, or take over the title to, or the possession of, for use or operation by the United States any ship now constructed or in process of construction or hereafter constructed, or any part thereof, or charter of such ship.” So it will be seen that they were not taken over in mass or requisitioned merely by the passage of the legislation or by the bestowal of these powers. And in claiming such requisitions of particular facilities by the government litigants have been left by the legislation, and the construction of it by the court, to show such facts by aliunde proof. From what has been said the question of whether the defendant below could act and did act as agent remains a question of fact; and we can not dispose of the question as a matter of law.

However, we are of the opinion that if the defendant below has shown, or hereafter shows, that in making the affreightment contract it did not act as a principal, but as a matter of fact was known to be acting as an agent for a disclosed principal, and that if the plaintiff below knew that the defendant was really acting in the matter for a disclosed principal, and not for itself, there can be no recovery in this action as brought and as maintained. The petition was drawn to recover damages against the defendant for its negligent failure to perform its contract duties under its affreightment contract. It was not drawn to recover against an agent for a tort committed by it, independently of the contract. The suit is admitted not to be in trover; and was so held by the Supreme Court. It is not an action for pure conversion, independently of the contract, and resting upon a basis of pure trespass. It is founded upon the violation of a carrier’s public duty arising out of its contract of carriage. And it is the law of this State that in such an action privity between the parties to the action must be shown. The Civil Code (1910), § 4408, provides as follows: “No privity is necessary to support an action of tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and privies of that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract.” The suit as here brought and maintained could not have been maintained against anybody independently of contract. The contract must inevitably be looked to in order to ascertain what duty was violated by the guilty party. And it must inevitably be looked to in order to ascertain the party who was bound to the performance of that duty. Assuming, therefore, for the sake of the argument, that under the proof submitted the defendant was an agent only in the making of the contract, and that he made it for a disclosed principal, then the defendant, not being bound by the contract, is not liable to the plaintiff for the acts of negligence arising out of the contract as specifically charged in this petition.

The rule would be otherwise if the basis of the action did not arise out of a contract. If the suit was in trover as for a conversion of the property, independent of any contractual obligation, it could be maintained, whether or not the defendant was an agent, for in that event the tort thus committed would rest firmly upon the law of trespass] and any one, whether in the capacity of principal or agent, would be liable where it appeared that he actively participated in the conversion, either by himself or in concert with others. As showing that it is the contract which determines the duty to be performed, in cases like we have here, we call attention to the language of the Supreme Court in the case of King v. Southern Ry. Co., 128 Ga. 285, 288 (57 S. E. 507) : “The demurrer was properly overruled. The petition set forth a cause of action, and was not demurrable for duplicity or for joining an action ex contractu with one ex delicto. The action, fairly construed, was one ex delicto. The purchase and delivery of the ticket were alleged in order to show the duty of the defendant toward the plaintiff. It is not always entirely easy to distinguish between a suit for breach of contract for carriage, and the allegation of the contract in order to show a duty resting upon the carrier where the action is one for a tort, and yet it is well established that such a distinction does exist. Here the suit was not for a breach of the contract of carriage to Waco, but was for a tort committed on the plaintiff; and the purchase of a ticket by him and its acceptance by the conductor of the company were alleged, to show the relation of himself and the company to each other, what was the duty of the company toward him under the circumstances, and that it violated its duty and committed a tort upon him.” This court also adverted to the same principle, in another connection, in the case of Lytle v. Southern Ry. Co., 3 Ga. App. 219, 221 (59 S. E. 505), where the court said that “the suit is none the less ex delicto because a contract is alleged by way of inducement or as showing the relation of the parties [citations]. In this case, the defendant having agreed to safely deliver the cattle to the plaintiff at Tampa, Florida, a breach of legal duty, occasioned by the failure to deliver, arose in that city [citations]. The gravamen of the complaint is not any particular act of negligence by which the cattle were lost, but the legal wrong of failing to deliver at the destination [citation].” From what has been said it follows that if the jury should find, as a matter of fact, under the testimony submitted, that the contract was entered upon by the plaintiff with the defendant as agent for a disclosed principal, it could not recover in an action such as is here maintained.

But as we are not prepared to say that the jury were compelled to find, under the evidence submitted, that the contract was in fact entered upon by the defendant as agent for a disclosed principal, it becomes necessary to deal with the case on the supposition that the contract might have been entered upon by the defendant for itself and in its own behalf. On this theory of the case, since the defendant might be held liable for negligence in the performance of the duties arising out of the contract made by itself as a principal and on its own behalf, it becomes necessary to deal with the exceptions taken by the defendant with respect to the charge •of the court.

Under the third ground of the amendment to the motion for a new trial, the court erred in refusing to strike a part of the testimony of Hood, a witness for the plaintiff, who swore that the cotton was delivered to the defendant at Brunswick; the motion to strike being based upon the ground that it appeared that the answer of the witness showed that he obtained such information from the yard-master of the railroads, and that said testimony was hearsay.

Having held, supra, under the third ground, that the hearsay testimony of Hood as to delivery was illegally admitted, the court did not err in refusing to give a certain requested instruction to the effect that if the jury should find that such testimony was obtained from another, it would be hearsay and should be disregarded.

Having instructed the jury that the plaintiff must show that there had been a delivery of the cotton, in good order, to the defendant before it would be liable to the plaintiff, the court did not err in refusing a request to charge as follows: “If it appears from the testimony of Mr. Smith, without contradiction, that this cotton was received upon the yard of the Southern Eailroad, belonging to the Southern Eailroad, the railroad being at the time operated by the United States railroad administration, then you can not find that there was a delivery to one of the ships operated by the defendant and its contract was to transport per ‘Western Front’ or substitute. In this event your verdict would be for the defendant.” Furthermore, the request was properly refused because there was other evidence from which the jury might have found that this cotton was delivered to the defendant. Of course, if the only delivery which was in fact made was upon the yard of the Southern Eailroad, it would not be sufficient to render the defendant liable. We do think, however, since the suit is brought to recover the full value, as in good order, that in order for the verdict to be sustained the evidence should show, as it appears not to have been shown, that the cotton was delivered to the defendant while in good condition.

It appearing from the charge of the court that the substance of the following requested instruction was covered thereby, there was no reversible error in refusing to charge: “If you find from the testimony of Hood that he had sold this cotton to Stowell & Company prior to the making of this contract, then the' property would belong to Stowell & Company, and they would be proper parties to sue, and plaintiff could not recover in this case. In the fourth paragraph of the declaration plaintiff alleges that the bales of cotton were the property of petitioner, meaning the plaintiff. In this event the case for the plaintiff would fail.” But we are of the opinion that both the charge given by the court and this requested cháTge on this point were improper. The Supreme Court has construed the petition in the instant ease as setting forth a cause of action for a tort, growing out of negligence in the performance of the duties arising under a private contract. It has held specifically that the action is not trover. Section 4403 of the Civil Code (1910) provides as follows: “A tort is a 'legal wrong committed upon the person or property, independent of contract. It may be either—(1) A direct invasion of some legal right of the individual. (2) The infraction of some public duty, by which special damage accrues to the individual. (3) The violation of some private obligation, by which like damage accrues to the individual. In the former case no special damage is necessary to entitle the party to recover. In the two latter cases such damage is necessary.” The petition in the instant case, as construed by the Supreme Court, must be taken as not being based upon “a direct invasion of some legal right of the individual,” as in trespass or trover, nor is it based upon “the infraction of some public duty by which special damage accrues to the individual,” such as a refusal to accept freight for shipment in contravention of the carrier’s public duty so to do, or injury and damage to the shipment growing out of negligent conduct, independently of its contractual duty, which would render it liable as a public carrier. The petition is based, in our opinion, however, upon “the violation of some private obligation by which damage accrues to the individual.” This court has defined a tort to be the following: “A tort is a legal wrong committed upon the person or property of another, independent of contract. But an action in tort may be maintained for the violation of a duty flowing from relations between the parties created by contract. Payne v. Watters, 9 Ga. App. 265 (70 S. E. 1114).” Commercial City Bank v. Mitchell, 25 Ga. App. 837 (1) (105 S. E. 57). It is true that if the action in tort had been based upon a direct invasion of some legal right of the individual, or had been founded upon the infraction of some public duty by which special damage accrues to the 'individual, the suit could be maintained only by the person in whom the legal title to the damaged property inhered. But in a case such as the instant case, where the complaint is grounded upon negligence in performance of the duties imposed by the contract of shipment, and, therefore, while not based upon the contract, but in tort, is necessarily founded and grounded upon the obligations assumed under the specific contract, by 'the contracting parties thereto; the maker of the contract is the one to complain of negligence in its performance rather than some other person not a party to the agreement. The defendant having contracted with the plaintiff for the performance of certain duties, it does not lie in defendant’s mouth to say that the plaintiff.can not complain of defendant’s negligence in performance of the duties imposed by the contract. The principle just stated seems to be the very doctrine involved in the law set forth by.section 4408 of the Civil Code (1910), which provides as follows: “No privity is necessary to support an action for a tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract.” We do not think that in a case where “the tort results from the violation of a duty itself the consequence of a contract,” the right of action given to the parties and privies to that contract is taken away even though another party would have another different and distinct right of action for the injury independently of the contract. See 38 Cyc. 433, and footnotes. It is true that under section 5517 of the Civil Code (1910), “An action for a tort must, in general, be brought in the name of the person whose legal right has been affected, and who was legally interested in the property at the time the injury thereto was committed, and against the party committing the injury, either by himself, his servant, or agent in his employment.” Such would always be the case where the action is founded on a direct invasion of some legal right of the individual, such as a suit in trover or for trespass or for the infraction of some public duty by which special damage accrues to the individual; but it will be observed that section 5517 of the Civil Code (1910), above quoted, does not say that an action for tort must always be brought in the name of the person whose legal right has been affected and who was legally interested in the property at the time the injury thereto was committed, but that this is merely the general rule; and we think that section 5517 of Civil Code (1910) does not apply when the action as brought is not upon a tort independent of a contract; but where it is in fact brought in tort “for the violation of some private obligation,” then the general rule as to the requirement that title to the damaged property must lie in the plaintiff does not apply. It might be urged that the plaintiff, although the maker of the contract, can not be heard to complain, because he has parted with the title to' the damaged property; nevertheless, in making the contract he was, to say the least, the bailee of the true owner of the property; and both as such and as the maker of the contract he was entitled to maintain the action based upon the negligent violation of duty arising under the contract made in his own name. It is certainly not open to argument that if the suit sounded in contract and not in tort, and was specifically based upon the breach of the contract, the maker of the contract should sue, irrespective of the fact that he had parted with his title to the property. See Carter v. Southern Railway Co., 111 Ga. 38 (36 S. E. 308, 50 L. R. A. 354); Atlantic Coast Line R. Co. v. Meinhard, 133 Ga. 684 (66 S. E. 897). The same argument as to lack of damage to the plaintiff, by reason of a lack of title to the damaged property, might be urged to an action ex contractu; but the theory upon which such a suit is justified is that inasmuch as the primary ,right of action is in the party making the contract, he must maintain the action even though in doing so he may be treated as a trustee to hold the recovery for the person actually entitled thereto. Moreover, the distribution of such legal recovery is a matter in which a guilty defendant has absolutely no concern. It follows, from the reasoning which we have employed, that inasmuch as the plaintiff in the instant case was the proper party to complain of negligence in the performance of the duties arising out of the contract which he made, and inasmuch as he was the only party who could thus complain, he can not be deprived of his right to complain, even though the alleged real owner of the property might be entitled to maintain another and different cause of action upon a tort, independent of the contract of affreightment.

It having been assumed by the litigants, by this court, and by the Supreme Court in answering our certified questions, that the correct measure of plaintiff’s damages would be the market value of the cotton at the point of destination, Liverpool, at the time of the delivery, or, in the event of no delivery, at the time it should have been delivered under the contract, less the freight charges, the court- erred in refusing to charge as follows: “Even if the plaintiff has met all other requisites in this proof, yet it would still be your duty to find for the defendant, unless plaintiff has produced evidence before you to satisfy you wbat was tbe market price of the six bales of cotton in Liverpool, England, at the time when the cotton would have been delivered there had the contract been complied with. Unless such evidence has been produced to show when the delivery would have taken place and what the market value of the cotton would have been in Liverpool at that time, then the plaintiff has failed to make out a case and your verdict would be for the defendant. Evidence as to the value in Savannah or Brunswick would not satisfy this requirement.” This charge was entirely proper, and it was error to refuse to give it, under the ruling of the Supreme Court in answer to our second certified question in this case.

The court erred in giving the excerpt complained of in the eighth ground of the motion, for the reasons set forth in the preceding section of the opinion.

It having been held supra, under the third ground of the motion, that the hearsay testimony of Hood was illegally admitted, the court erred in giving the excerpt complained of in the ninth ground of the motion.

The court having, in other parts of the charge given, charged the jury that the plaintiff must show that the cotton was in fact delivered to the defendant and in good order, and having also charged upon the question of the agency of the defendant in making the contract, and it being undisputed that the defendant had reconditioned the cotton and had actually sold it in violation of its contract, and that there had never been any delivery of the cotton in Liverpool at all, the court did not err in giving the excerpt complained of in the tenth ground of the motion.

The substance of the request having been fully covered by the charge given, the court did not err' in refusing to .give the requested charge set out in the eleventh ground of the motion.

Eor the reasons set forth in the first division of the opinion, the court did not err in charging as follows: “If, in view of all the facts, the contract itself and the testimony submitted to you, you find that the defendant made the contract for the United States shipping board, or the corporation which was operating the shipping board, known as the emergency-fleet corporation, and not for itself, and the plaintiff knew this and knew that the defendant had no interest in the freight money, save only a commission as agent, then your verdict would be for the defendant. In a word, if he knew that Strachan Shipping Company had no interest in the transaction, except that they were going to get a commission and that they were acting for somebody else, if they knew it,, they could not hold Strachan &'Company liable—any more'so than you could make a contract with John Smith and if he break it bring suit against Peter Brown.”

Judgment reversed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    16321.
    Johnson, ordinary, for use, etc., v. United States Fidelity & Guaranty Company.
    Executors and Administrators, 24 C. J. p. 1066, n. 27.
    Decided February 19, 1926.
    Complaint on bond; from city court of LaGrange—Judge Tuggle. February 16, 1925.
    Application for certiorari was denied by the Supreme Court.

      Harry M. Breed, S. Holderness, for plaintiff.

      A. H. Thompson, for defendant.
   Stephens, J.

1. This is a suit against the surety upon an administrator’s bond in behalf of alleged creditors of the estate; and while it appears that part of the amount sued for has been adjudged a liability against the administrator in his representative capacity in a prior suit against the administrator to which the surety was not a party, it nevertheless appears from the allegations in the petition that the entire amount sued for represents rents and profits from real estate which belonged to the intestate accruing after the death of the intestate. The administrator can not be considered as having collected such rents and profits in his capacity as administrator, and the surety upon the administrator’s bond is not liable for the failure of the administrator to account therefor. Hoyt v. Ware, 156 Ga. 98 (6) (118 S. E. 734) ; Roberts v. Kite, 33 Ga. App. 91 (125 S. E. 719).

2. The petition failed to set out a cause of action against the surety, and the general demurrer thereto was properly sustained. Bryant v. Owen, 1 Ga. 355; Gibson v. Robinson, 90 Ga. 756 (2) (16 S. E. 969, 35 Am. St. Rep. 250); Fidelity Co. v. Rich, 122 Ga. 506 (2) (50 S. E. 338) ; Shipp v. McCowen, 147, Ga. 711 (95 S. E. 251, L. R. A. 1918E, 816, note).

Judgment affirmed.

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


author: Bell, J.

text:
    16636.
    Daniel v. City of Claxton et al.

    Appeal and Error, 4 0. J. p. 1001, n. 32.
    Courts, 15 G. J. p. 1040, n. 63.
    Elections, 20 O. J. p. 59, n. 24 New; p. 76, n. 46.
    Municipal Corporations, 28 Cye. p. 1590, n. 67, 70; p. 1656, n. 70.
   Bell, J.

1. “Under the constitutional amendment of 1916, defining the jurisdiction of the Supreme Court and the Court of Appeals of this State (Ga. L. 1916, p. 19, Park’s Code Supp. 1917, §§ 6503, 6506), the Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the constitution to a given state of facts, and that do not involve construeton of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States or any treaty.” Gulf Paving Co. v. Atlanta, 149 Ga. 114 (1) (99 S. E. 374).

2. This ease having gone first to the Supreme Court, the judgment of that court transferring it to this court would seem to imply that the case is not one involving a construction of the constitution within the rule set forth in the preceding paragraph. Stone v. Edwards, 32 Ga. App. 479 (1) (124 S. E. 54) ; Bolton v. Nwoman, 22 Ga. App. 15 (1) (95 S. E. 472); Davis v. Rowe, 23 Ga. App. 188 (1) (98 S. E. 231).

3. Where a city owning and operating a water and light plant as a single enterprise or unit submits to the qualified voters the question of the issuance of bonds in the sum of $20,000 to be applied as follows: $19,000 to purchasing and installing “crude oil engines for the water and light plant . . for the purpose of furnishing water and electric lights and power to said city,” and $1,000 to be applied to installing a water main along a named street in the city, the uses to which the proceeds in the sum of $19,000 and in the sum of $1,000 were to be applied respectively were not so distinct and independent as to require a separate vote as to the issuance of the bonds in these sums. Rea v. LaFayette, 130 Ga. 771 (61 S. E. 707); Gracen v. Savannah, 142 Ga. 141 (2) (82 S. E. 453).

(а) The court did not err in overruling the demurrer of the intervenors attacking the petition of the solicitor-general. upon the ground that it appeared that two distinct and independent propositions for the issuance of bonds had been submitted to the voters without provision being made for a separate vote on each.

(б) Evidence that $1,000 would have paid for the installation of a water main of only about one tenth of a mile in length was incompetent to show that the sum to be so applied was for a separate' and distinct use from that to be made of the $19,000, and the court did not err in rejecting such evidence offered by the intervenors.

4. Under article 7, section 7, paragraph 1, of the constitution of the State as amended in 1918 (Park’s Code Supp. 1922, § 6563; Ga. L. 1918, p. 99), before any county, municipality, or division of the State shall be authorized to incur a debt, it must obtain the assent of two thirds of the qualified voters thereof, voting at an election for that purpose, and the two thirds so voting must constitute a majority of the “registered voters.” A registered voter is one who has been lawfully registered and who has the present right to vote. Persons who may have been entitled to be registered and may have been lawfully registered are not registered voters at a given time thereafter if since their registration they have for some reason become disqualified to vote. Persons who were not qualified to vote in the election should not be considered as registered voters in ascertaining the results thereof, although their registration was legal and proper when made. Chapman v. Sumner School District, 152 Ga. 450, 456; Brown v. Atlanta, 152 Ga. 283 (3) (109 S. E. 666) ; Davis v. Warde, 155 Ga. 748 (4) (118 S. E. 378) ; Pace v. Raleigh, 140 N. C. 55 (2) (52 S. E. 277) ; Williams v. Commissioners, 176 N. C. 554 (2) (97 S. E. 478).

(a) The petition of the solicitor-general in the instant case, having alleged that the “registered qualified voters of said city at the time of holding an election entitled to vote in said election” were a certain number stated, was not subject to demurrer upon the ground that it did not show the number of registered voters, within the meaning of the constitutional provision above referred to.

5. The charter of the city of Claxton provides that the qualified electors at any election held under the authority of the mayor and council shall, in addition to other qualifications, “be persons who are qualified to vote for members of the General Assembly.” See Ga. L. 1911, p. 942, § 8. But the failure of a taxpayer to make a return of his taxes as required by law is not, without more, a ground for disqualifying him as a voter for members of the General Assembly. As to taxes, it is only nonpayment which will disqualify the voter, and even this is not a disqualification if, as in the instant ease, the election is held within six months from the expiration of the time fixed by law for the payment of such taxes. Turk v. Royal, 34 Ga. App. 717 (3) (131 S. E. 119); Civil Code (1910), §§ 34 (3), 36, 39, 6397.

(a) The court erred in admitting evidence to show that certain persons who had registered in December, 1924, made no return of taxes to the county for that year, and in holding that because of the failure to make such returns they should not be considered as “registered voters,” in ascertaining the result of the election. Since the effect of that ruling was to eliminate a number of registered voters who did not appear to be otherwise disqualified and to reduce the number of registered voters so that the two thirds of those voting constituted a majority of the registered voters when, except for such ruling, such two thirds would have been less than a majority of the registered voters, the error fundamentally affected the final judgment and was prejudicial.

6. The charter of the city of Claxton provides for the registration of voters and declares that the mayor and council are empowered to call any bond or other special election, and that in such election “the last registration list shall govern as to the legal voters at such election.” The charter further authorizes the mayor and council “to provide by ordinance for the registration of voters upon such terms as they may prescribe,” not inconsistent with law. Ga. L. 1911, p. 942; Ga. L. 1920, p. 861. While a revision of the list of registered voters as shown upon the registration book, to determine who should be counted as registered voters in aseertaining .the result of a bond election, would not be the equivalent of providing a special registration, contrary to the amendment to the constitution as referred to above (Ga. L. 1918, p. 99; Brown v. Atlanta, supra; Chapman v. Sumner School District, supra; Sheffield v. Patmos School District, 157 Ga. 660 (6) (122 S. E. 57) ; Cowart v. Waycross, 159 Ga. 589 (2) (126 S. E. 476) ), the court nevertheless erred in admitting in evidence a so-called list of the registered voters taken from the registration book but revised by certain members of the city council appointed for that purpose by the mayor, when, so far as appears, no ordinance had been enacted providing for registrars or authorizing the mayor to make such appointments. See Sheffield v. Patmos School District, supra; Smith v. Dublin, 113 Ga. 833 (2) (39 S. E. 327); McDonald v. Lane, 80 Ga. 497 (5 S. E. 628); Hill v. Atlanta, 125 Ga. 697 (2) (54 S. E. 354); Herrington v. State, 103 Ga. 318 (1) (29 S. E. 931, 68 Am. St. R. 95) ; Wright v. Davis, 120 Ga. 670 (3), 674 (48 S. E. 170); Bedingfield v. First National Bank, 4 Ga. App. 197 (1) (61 S. E. 30) ; Parrish v. Town of Adel, 144 Ga. 242 (86 S. E. 1095). It is unnecessary to decide in the instant case whether under the above or other provisions of the city’s charter such an ordinance, if enacted, would be valid.

Decided February 19, 1926.

Bond validation; from Evans superior court—Judge Strange. May 9, 1935.

B. M. Girardeau, B. E. Burroughs, for plaintiffs in error.

E. E. Durrence, P. M. Anderson, J. Saxton Daniel, solicitor-general, contra.

7. The question as to the sufficiency of the advertisement of the notice of the election, not having been raised either in the trial court or in the bill of exceptions, is not decided. See Rea v. LaFayette, 130 Ga. 771, 777 (61 S. E. 707).

Judgment reversed.

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


text:
    16699.
    Clay et al. v. Austell School District et al.

    Schools and School District, 35 Oye. p. 995, n. 30 New.
   Jenkins, P. J.

1. The petition for the validation of bonds, filed by the ■ solicitor-general, against the Austell School District, which is alleged to be a legally constituted and established school district in the county of Cobb, State of Georgia, was not subject to demurrer on the ground that it set forth no proper party defendant. “If the election for district bonds was unauthorized because the district was not one in which a local tax was levied or was not in a county which levied such a tax, it was incumbent upon the defendant or the intervenors to plead and prove such facts.” Powell v. Consolidated School District, 26 Ga. App. 135 (1 a) (105 S. E. 616).

2. “Where statutory proceedings are brought for the purpose of validating bonds under the Civil Code (1910), § 445 et seq., and are contested by-citizens vs-ho become parties thereto and deny the truth of the substantial allegations of the petition, the burden is on the State to prove the material facts which are requisite to obtain validation. Harrell v. Whigham, 141 Ga. 322 (80 S. E. 1010); Richter v. Chatham County, 146 Ga. 218 (91 S. E. 35); Stephens v. School District, 154 Ga. 275 (114 S. E. 197).” Jennings v. New Bronwood School Dist., 156 Ga. 15, 17 (3) (118 S. E. 560). The only thing admitted by the intervenors ■was that the district had served the statutory notice on the solicitor-general.

Decided February 19, 1926.

Validation of school bonds; from Cobb superior court—Judge Blair. June 1, 1925.

B. 3. Lumpkin, J. J. Barge, for plaintiffs in error.

John 8. Wood, solicitor-general, Wood & Vandiviere, Anderson, Rountree & Crenshaw, contra.

3. The ruling made above is applicable -where the petition filed by the solicitor-general alleges facts sufficient to warrant validation of the bonds, and the answer filed by the defendant admits the facts alleged. Harrell v. Whigham, supra; Jennings v. New Bronwood School Dist., supra.

4. Accordingly the court erred in ruling, as set forth in the bill of exceptions, that “the admissions of the allegations by the defendant with exhibits to the answer made a prima facie case for the State,” and that “the burden was on the objectors to overcome the prima facie case made by the defendant’s answer and exhibits.”

Judgment reversed.

Stephens cmd Bell, JJ., concur.


text:
    16714.
    Burnam et al. v. Rhine Consolidated School District et al.

    Schools and School District, 35 Cyc. p. 991, n. 90.
    Decided February 19, 1926.
    Validation of school bonds; from Dodge superior court—Judge Graham. June 29, 1925.
   Jenkins, P. J.

“As a condition precedent to the holding of an election for school bonds, under the code of school laws, approved August 19th, 1919, section 143 (Ga. L. 1919, pp. 345-6), a notice of such election must be published for thirty days next preceding the day of the election, in the newspaper in which the sheriff’s advertisements for the county are published.” Scott School Dist. v. Carter, 28 Ga. App. 412 (111 S. E. 216). Accordingly, in the instant case, where it appears that no such notice was published, the judgment validating the bonds was erroneous.

Judgment reversed.

Stephens and Bell, JJ., concur.

0. J. Franklin, for plaintiffs in error.

M. H. Boyer, solicitor-general, J. 'H. Milner, W. A. Wooten, contra.


text:
    16217.
    Harrington v. Hadden.
    Continuances, 13 C. J. p. 182, n. 64.
    Decided February 25, 1926.
    Complaint; from Laurens superior court—Judge Kent. December 20, 1924.

      W. A. Dumpier, William B. Kent, for plaintiff in error.

      Burch & Daley, contra.
   Stephens, J.

It does not appear that, upon the hearing of the motion for continuance upon the ground of absent witnesses, any showing was made that the motion was not made for the purpose of delay, although the showing in all other respects may have been complete. Aiken v. Carmichael, 127 Ga. 407 (56 S. E. 440). The evidence authorized the verdict for the plaintiff, including the amount found as interest.

Judgment affirmed.

Jenloims, P. J., and Bell, J., concur.


text:
    16226.
    COLLINS v. GLISSON, administrator.
    1. In a suit upon a promissory note where the defendant, who had filed a plea of non est factum, testified upon the trial'that the signature to the note was a forgery by his son, whom he designated by name, the trial judge was authorized to hold that the alleged newly discovered evidence of the son, to the effect that he (the son) signed the father’s name to the note, could have been discovered by ordinary diligence.
    2. Where, on the trial of the issue made by a plea of non est factum filed by the defendant, the defendant testifies that his signature to the instrument sued on is a forgery, the jury may render a verdict establishing the genuineness of the instrument from a comparison between the disputed signature and other signatures of the defendant which are admittedly genuine, and from evidence that the disputed signature “favors,” “looks very much like,” “bears a great resemblance to,” and “is the same kind of handwriting” as the admittedly genuine signatures.
    3. The evidence authorized the verdict for the plaintiff, and the court did not err in overruling the defendant’s motion for a new trial, based upon the general grounds and upon alleged newly discovered evidence. Bills and Notes, 8 C. J. p. 1051, n. 39.
    Evidence, 22 C. J. p. 772, n. 95.
    New Trial, 29 Cyc. p. 883, n. 87; p. 884, n. 88; p. 886, n. 5.
    Decided February 26, 1926.

      Complaint; from city court of Metter—Judge Lanier. January 3, 1935.

      Kirkland & Kirkland, for plaintiff in error.

      G. W. Turner, contra.
   Stephens, J.

This is a suit upon a promissory note against M. A. Collins, who filed a plea of non est factum. A verdict was rendered for the plaintiff. The defendant made a motion for a new trial, upon the ground that the verdict was without evidence to support it and also upon the ground of alleged newly discovered evidence. For the reasons given in headnote 1 this ground of the motion was properly overruled. For the reasons given in head-notes 3 and 3 the majority of the court (the writer of this opinion dissenting) are of the opinion that the evidence authorized the verdict for the plaintiff.

The writer, speaking for himself, by way of dissent from the ruling contained in headnotes 3 and 3, submits the following: A mere comparison made by a jury between a signature, the genuineness of which is disputed, and an admittedly genuine signature, although the jury may be assisted by evidence that the disputed signature resembles the genuine signature, in the absence of other evidence, authorizes a finding only that the two signatures are exactly alike, and does not authorize a finding that the two signatures were executed by the same person. The only evidence tending in any manner tó establish the signature to the note as being the genuine signature of the defendant was that of three local bank officials, each of whom testified that he had had experience with handwriting and had seen the defendant’s signature, and that the signature to the note sued on resembled that of the defendant. The witnesses had before them admittedly genuine signatures of the defendant. These witnesses, in characterizing the disputed signature to the note sued on, used such expressions as it “favors,” “looks very much like,” “bears a great resemblance to” the defendant’s signature, that it “is the same kind of handwriting.” None of these witnesses testified that the disputed signature was the genuine signature of the defendant, or that in his opinion it was the genuine signature of the defendant. Genuine signatures of the defendant were introduced in evidence and were presumably compared by the jury with the disputed signature.

The testimony of the bank officials amounts to no more than that the signature to the note sued on resembles the genuine signature of the defendant. A mere comparison of the disputed signature with the admittedly genuine signature, without the assistance of other evidence, could develop no fact other than that the signatures were exactly alike. The testimony of the bank officials as to the resemblance of the disputed signature to the genuine signature amounts to no more than what the jury itself could ascertain from comparison. The entire evidence, therefore, together with any inference which the jury may draw by comparison, amounts to no more than that the disputed signature bears an exact resemblance to the genuine signature of the defendant. It being a matter of common knowledge that one who would undertake to forge the signature of another would attempt to reproduce a facsimile or perfect representation of the genuine signature, evidence that the disputed signature is exactly like the genuine signature is just as consistent with the fact that the disputed signature is an exact imitation of the genuine signature as it is that the disputed signature is genuine. While section 5836 of the Civil Code (1910) provides that “other writings, proved or acknowledged to be genuine, may be admitted in evidence for the purpose of comparison by the jury,” it does not provide that such evidence, standing alone and uncorroborated, authorizes a jury to find from a comparison between two signatures, one of which is acknowledged to be genuine, that the signature in dispute is also genuine. Henderson v. Hackney, 16 Ga. 521 (3), holds only that such evidence is admissible, and does not hold that such evidence is sufficient to support a verdict finding the disputed signature to be genuine.

It further appears that the defendant himself testified that the signature to the note sued upon was not his signature, but that it had been attached to the note by his son, W. L. Collins, and it was undisputed that W. L. Collins was a good penman. The defendant testified that W. L. Collins could imitate his signature. The defendant further testified that he had signed other notes with W. L. Collins, but not the note sued upon.

The burden of proof being upon the plaintiff to establish the genuineness of the signature to the note sued upon, and the evidence possessing no preponderatingly probative value to establish such proposition, rather than that the disputed signature was a forgery exactly resembling the defendant’s signature, the verdict found for the plaintiff is without evidence to support it.

See the following authorities upon the question in controversy: 22 C. J. 772; 1 Greenleaf on Evidence, § 578 a; Stitzel v. Miller, 250 Ill. 72 (95 N. E. 53, Ann. Cas. 1912B, 412); 12 L. R. A. 456, note; 62 L. R. A. 817, note, 867; Temple v. Smith, 7 La. Ann. 562; United States v. Molloy, 31 Fed. 19 (7); People v. Storke, 128 Cal. 486 (60 Pac. 1090); Castor v. Bernstein, 2 Cal. App. 703 (84 Pac. 244).

Judgment ¡affk'med.

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

Stephens, J., dissents.


text:
    16304. 16343.
    Ruffner v. Sophie Mae Candy Corporation. Sophie Mae Candy Corporation v. Ruffner.
    Bills and Notes, 8 O. J. p. 1060, n. 40.
    Corporations, 14 C. J. p. 492, n. 27; p. 870, n. 29; p. 871, n. 50; 14a C. J. p. 131, n. 95 New; p. 153, n. 53; p. 275, n. 58; p. 276, n. 59; p. 281, n. 1.
    Trial, 38 Cye. p. 1575, n. 31,
   Stephens, J.

1. “A corporation does not reduce its capital stock . . by purchasing shares thereof, where it does not retire them, but sells and transfers them to others or holds them ready for such sale and transfer.” 14 C. J. 492.

2. Where a corporation, before executing a contract by which it purchases 516 shares of its own capital stock for a consideration of $40,000 (of which sum it pays in cash $20,000, and for the balance of which it executes notes), has received from a prospective purchaser of its capital stock $25,000, which he has deposited with it for the purpose of being applied upon the purchase of 500 shares of the stock, for which he agrees to pay $35,000, and where the stock purchased by the corporation is purchased not for the purpose of being extinguished or retired, but for the purpose of being reissued or resold, and where the corporation, after purchasing the 516 shares, provides for an increase of its capital stock from $100,000 to $150,000, accepts the offer of the prospective purchaser for 500 shares, retains the money deposited, and issues the stock, and where at the time the outstanding capital stock of the corporation amounts to $77,350, the transaction does not amount to a reduction by the corporation of its capital stock below the minimum of $60,000 provided in its charter.

3. A corporation which is not insolvent may in good faith and to serve its best interests accept the resignation of one of its officers as its president, and, in consideration of his resignation, purchase from him his shares of the capital stock of the corporation at an agreed valuation, where the stock is not retired but is held for resale or reissue. Joseph v. Raff, 82 App. Div. 47 (81 N. Y. Supp. 546) ; Gilchrist v. Highfield, 140 Wis. 476 (123 N. W. 102, 17 Ann. Cas. 1257) ; In re Castle Braid Co., 145 Fed. 224 (3) ; Copper Belle Mining Co. v. Costello, 11 Ariz, 334 (95 Pac. 94).

Decided February 26, 1926.

Complaint; from Fulton superior court—Judge Ellis. February 6, 1925.

STATEMENT OE EACTS BY STEPHENS, J.

Shirley Ruffner sued Sophie Mae Candy Corporation upon two promissory notes dated May 8, 1922, aggregating $13,000, payable to the plaintiff and executed by “Sophie Mae Candy Corporation (L. S.) by William Dunlop, its Treasurer.” The defendant corporation admitted the execution of the notes, but alleged that they were given for a balance due upon the purchase by it of 516 shares of its own capital stock, and that by reason of such purchase its capital stock was reduced below the minimum of $60,000 allowed by its charter, and that the execution of the notes had been procured by fraud, the alleged fraud being that the purchase of the stock and the execution of the notes were authorized by a meeting of the stockholders of the corporation at which the plaintiff, who was at the time the president and a director of the corporation and who owned'a majority of the stock, was present and voted, and that the plaintiff concealed from the stockholders the fact that he was indebted to the corporation, and also concealed from them the fact that the corporation owed various outstanding debts. The corporation also filed a counterclaim against the plaintiff, alleging that he was indebted to it in various sums alleged.

4. A stockholder owning a majority of shares of the capital stock of a corporation may,- at a stockholders’ meeting regularly held, bind the corporation to contract with him for the purchase of his property, provided the contract is made for a fair consideration representing the true value of the property, is not detrimental to the interests of the minority stockholders, and is not the result of fraud. 7 R. C. L. 309; Wheeler v. Abilene National Bank Bldg., 159 Fed. 391 (89 C. C. A. 447, 16 L. R. A. (N. S.) 892, 14 Ann. Cas. 917); Gamble v. Queens County Water Co., 123 N. Y. 91 (25 N. E. 201, 9 L. R. A. 527).

5. It does not appear as a matter of law that the plaintiff obtained the contract by fraud.

6. There being evidence to authorize the inference that the notes sued on, which were given by the corporation for the purchase price of its own capital stock, were, under the above rulings, valid and binding obligations against the corporation, the court erred in directing a verdict for the defendant corporation in the suit upon the notes, and also in directing a verdict for the plaintiff upon the corporation’s counterclaim against him.

7. See McGregor v. Fitzpatrick, 133 Ga. 332 (65 S. E. 859, 25 L. R. A. (N. S.) 50, note); Dalton Grocery Co. v. Blanton, 8 Ga. App. 809 (70 S. E. 183).

Judgments in both cases reversed.

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

On the trial the notes sued on were introduced in evidence. From the evidence it appears that at the time of the execution of the notes Ruffner, who was president and a director of the corporation, was the owner of 516 shares of its capital stock; that the corporation had agreed with Ruffner to purchase this stock for a consideration of $40,000; that it paid $20,000 to Ruffner upon the purchase price, and on May 8, 1922, executed the notes sued on and another note for the balance; that some time in 1922, before the execution of the contract for the purchase by the corporation of Ruffner’s stock, William Dunlop contemplated investing some money in the corporation and entered into negotiations with Ruffner for that purpose; that after considerable correspondence between them and an investigation by Dunlop of the affairs of the corporation, Dunlop made two deposits with the corporation, aggregating $25,000; that, in the language of Dunlop, the first deposit, which was $2,500, was made with the corporation “with the idea that I would later become a stockholder in the company.” It appears from the defendant’s plea that Dunlop at the time agreed to purchase from the corporation 500 shares of its stock for $35,-000. Dunlop testified: “I contemplated making a bigger investment than that, and have since; I put in my $22,500, together with the ■$2,500 that I had already deposited with them, before I made any further investigation; it was the purpose of making that investment in the company if my investigation satisfied me.” It appears from the evidence, that, after a further investigation of the affairs of the corporation during the negotiations with Ruffner, Dunlop became dissatisfied and suggested to Ruffner a return of the money which Dunlop had paid in to the corporation; and, after further negotiation between them, Ruffner proposed to Dun-lop that he (Ruffner) would, in the language of Dunlop, “sell out to the corporation, so I could take the stock in the corporation in his place; . . he was to sell his stock and I was to take it. I was to take his place in the company.” Dunlop testified: “Mr. Ruffner and I reached a tentative agreement, signed by him and by me as treasurer of the Sophie Mae Candy Company. X was not treasurer, however. Mr. Ruffner dictated that suggestion that I sign as treasurer. I signed as treasurer on the 8th of April. That paper contains the results of my tentative negotiations up to that time. My proposition was, I wanted to get out, and his counter-proposition was, he would get out, and he did. I bought his stock from the company. . . I continued my investigation and I kept it up until some time in May. The tentative agreement was dated April 8. There was a final agreement substantially to the same effect which was consummated on the 8th day of May.” It appears that on that date the contract by which the corporation purchased Ruffner’s stock was executed by Dunlop acting for the corporation, Dunlop in the meantime having been elected president and treasurer of the corporation, and Ruffner having resigned and severed his connection with the corporation. On that date Ruffner was paid $20,000 on the purchase price of his stock, and his stock, consisting of 516 shares, was transferred to the corporation. Dunlop further testified: “I closed up that trade on May 8. I bought him out dock, stock and barrel” . .. I did not buy his check [stock?]; he sold his stock to the company and I got the stock in the company later on; it was not part of the same deal; there was no connection whatever. The company bought all of Mr. Ruffner’s stock and bought out all his interests in the business; he got out and has not had anything to do with the business since. . . The transaction was closed up on May 8; on the 11th day of May I got 550 shares, as I remember it.” It appears that before Dunlop became connected with the corporation, and when the stockholders voted an acceptance of Ruffner’s proposition to sell to it his capital stock, the stockholders adopted a resolution authorizing an increase of the stock from $100,000 to $150,000. It appears from the minutes of the corporation that on May 11, after the contract with Ruffner had been executed, 500 shares of the capital stock were issued to Dunlop and 150 shares were issued to J. B. Coppedge.

The minute books of the corporation were introduced in evidence and showed in part the following: that a notice was signed by Shirley Ruffner, the president, and J. B. Coppedge, the secretary, who together owned more than one third of the outstanding stock of the corporation, calling a special meeting of the stockholders for the purpose of considering the election of new directors of the corporation, to consider the purchase from Shirley Ruffner of 516 shares of stock in the corporation, to increase the capital stock from $100,000 to $150,000, to amend the by-laws so that the officers should be president, treasurer, vice-president, and secretary, and so that the offices of president and treasurer might be combined in one person. The notice stated also that the meeting was called to transact other matters mentioned and any other or further business in connection with the several matters set out as might be necessary. It further appeared from the minutes introduced in evidence that the meeting was called for May 5, 1922, and that on that date there were present, either in person or by proxy, stockholders representing 693 shares of the corporate stock, 516 of which were owned by Shirley Ruffner, who was represented by proxy, J. B. Coppedge, and that the shares represented more than a majority of all the outstanding stock of the corporation and constituted a quorum according to the by-laws. A resolution was unanimously adopted accepting the resignation of all the directors, including Shirley Ruffner, and electing as directors William Dunlop, J. B. Coppedge, and another. A resolution was unanimously adopted authorizing the purchase from Shirley Ruffner of 516 shares of the capital stock of the corporation upon the terms and conditions set out in a contract submitted for the approval of the stockholders, and authorizing the president of the corporation to execute this contract in behalf of the company and “to do all other things necessary or incidental to the consummation of said trade.” A resolution was unanimously adopted increasing the capital stock of the corporation from $100,-000 to $150,000. A resolution was also unanimously adopted providing that the offices of president and treasurer be combined in one person, and that the offices of vice-president and secretary be combined in one person.

The minutes of the directors’ meeting, held immediately after the meeting of the stockholders, were also introduced in evidence. It appears that all three of the directors were present. William Dunlop was elected chairman and J. B. Coppedge was elected secretary of the board of directors. The resignation of Shirley Ruffner as president was accepted, William Dunlop was elected president and treasurer of the corporation, and J. B. Coppedge was elected vice-president and secretary.

On May 8, 1922, the notes sued on were executed and Shirley RufEner transferred 516 shares of stock to the corporation. Also on that date the contract agreed upon by the stockholders was executed by the Sophie Mae Candy Corporation, by William Dun-lop, its president, of the one part, and by Shirley RufEner of the other part. It is conceded in the brief of counsel for the defendant corporation that at the time of the execution óf this contract the outstanding stock of the corporation amounted to $77,350. This contract provided for the sale by Shirley Ruffner to the Sophie Mae Candy Corporation of 516 shares of the stock of that corporation for $40,000, $20,000 of which it recited was paid in cash, the balance of the purchase-money to be payable in three promissory notes. Shirley RufEner warranted that all the liabilities of the corporation of every kind whatsoever would not exceed $2,000, and he expressly assumed personal responsibility for any liabilities of the corporation in excess of this amount existing April 8, 1922. It was agreed that if it should be ascertained that the liabilities of the corporation upon that date exceeded $2,000, the corporation could offset the excess against the notes, but that this should not be the corporation’s exclusive remedy. It appears that the corporation paid dividends to its stockholders in May, 1923, and in February, 1924.

The charter of the corporation, which was introduced in evidence, provided for a minimum capitalization of $60,000, with the privilege of increasing the capital stock to $500,000 at the par value of $100 per share.

There is some evidence tending to establish a counter-indebtedness from Ruffner to the corporation.

A verdict was directed for the Sophie Mae Candy Corporation in the suit upon the notes. A verdict was directed for Ruffner upon the counterclaim alleging an indebtedness by him to the corporation.

Neufville & Neufville, Colquitt & Conyers, for Ruffner.

Horace Bussell, WatTcins & AsbiTl, for Sophie Mae Candy Corporation.


text:
    16325.
    City of Macon v. Macon Paper Company.
    Municipal Corporations, 28 Cye. p. 1321, n. 83, 85, 86; p. 1323, n. 4.
    Pleading, 31 Cyc. p. 289, n. 61.
    Decided February 25, 1926.
    Action for damages; from Bibb superior court—Judge Malcolm D. Jones. February 9, 1925.
    Application for certiorari was denied by the Supreme Court.

      Grady Gillon, E. B. Bussell, for plaintiff in error.

      Martin, Martin & Lamar, B. C. Powers, contra.
   Stephens, J.

1. Although a system for the drainage of surface-water from the streets of a city may be sufficient for that purpose at the time of its installation, yet where, by reason of changed conditions, due to the erection of buildings which shed water into the streets, and to the construction of pavements in the streets, both of which prevent the natural seepage of surface-water into the ground and thereby concentrate and augment the volume of water flowing, through the streets, the drainage system becomes inadequate to carry off water accumulating in the streets from an ordinary rainfall, by reason of which condition the water precipitated into the streets during a rainfall is not drained with sufficient rapidity to prevent its overflowing upon adjoining premises, and where the situation is known to the city, its maintenance thereafter by the city constitutes a nuisance, and the city may be liable for resulting damage therefrom to adjacent property owners. Langley v. Augusta, 118 Ga. 590 (8) (45 S. E. 486, 98 Am. St. R. 133); Mayor &c. of Waycross v. Houk, 113 Ga. 963 (2) (39 S. E. 577) ; 4 Dillon on Municipal Corporations, § 1745; City of Macon v. Roy, 34 Ga. App. 603 (130 S. E. 700).

2. This being a suit by a property owner against the city, in which the foregoing facts appeared from the petition, a cause of action was set out, and the court did not err in overruling the defendant’s demurrer.

Judgment affirmed,.

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


text:
    16358.
    Candler v. Hunnicutt.
    Appeal and Error, 4 C. J. p. 943, n. 81; p. 1031, n. 31.
    Building and Construction Contracts, 9 C. J. p. 719, n. 8; p. 738, n. 14; p. 739, n. 15; p. 780, n. 4.
    Contracts, 13 C. J. p. 332, n. 19.
   Stephens, J.

1. Where one contracts with the owner of a house which is being built to furnish and install in the house certain tiling as called for in the architect’s specifications, and no time for performance is specified, a reasonable time, determinable by all the circumstances, will be allowed for the performance of the work contracted for.

2. Where, by the terms of the contract, the tile to be furnished is of a designated kind produced by a particular manufacturer only, the furnishing of the tile agreed upon, produced by the particular manufacturer only, and not the furnishing of a tile just as good procured elsewhere and made by some other manufacturer, is essential to a compliance with the terms of the contract.

Decided February 25, 1926.

Complaint; from DeKalb superior court—Judge Hutcheson. March 2, 1925.

Candler, Thomson & Hirsch, for plaintiff in error.

Branch & Howard, contra. ■

3. Where, after the execution of such contract between the owner of the house and the person agreeing to furnish and install the tile, the ownfer becomes impatient at the delay in the performance of the contract by the person who has agreed to furnish and install the tile, which delay is due to the failure of the manufacturer from whom the tile has been ordered to make early deliveries of the tile, and it is thereupon agreed that the owner .will select other tile, to be procured elsewhere, which is to be substituted for that of the particular manufacture, and which is to be furnished and installed by the other contracting party under the terms of the contract originally made, such agreement constitutes no binding obligation upon the owner. Any agreement or promise by the owner to select another tile to be substituted for that contracted for is without consideration and amounts only to an offer to agree to a modification of the contract. Such a promise, moreover, is unenforceable in that the owner is left free to select for substitution such tile as he may see fit, and the other contracting party can not compel a selection.

4. In a suit against the owner by the party agreeing to furnish and install the tile, the allowance of an amendment to the petition, setting up as a new contract the alleged promise by the defendant to select and substitute new tile for that originally contracted for, as alleged in paragraph 3 above, was, since it set out no new contract, harmless, as against the objection to its allowance that it set out a new cause of action.

5. Where, in such a suit, it appeared from undisputed evidence that the only tile acceptable to the defendant was found in the possession of a tile-dealer who would not agree to sell it to the plaintiff, and where the defendant thereupon entered into a contract with the newly found tile-dealer to furnish tile and install it in the defendant’s house, and where the defendant notified the plaintiff that the contract between the defendant and the plaintiff was at an end, a charge to the jury to the effect that the amendment to the petition set up an agreement modifying the original contract, and that such conduct on the part of the defendant constituted a breach of the alleged modified agreement, was error and requires the grant of a new trial.

Judgment reversed.

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


text:
    16394.
    Kerr et al. v. DuPree et al.

    Brokers, 9 O. J. p. 579, n. 44 New; p. 673, n. 80 New.
    Conspiracy, 12 C. J. p. 543, n. 20; p. 639, n. 90.
    Damages, 17 C. J. p. 868, n. 51; p. 1061, n. 79.
    Husband and Wife, 30 C. J. p. 626, n. 13.
   Stephens, J.

1. The measure of damages for tortiously procuring one to break his contract with another is the damage suffered by the latter consequent upon the breach.

2. Where, by the terms of a contract between a real-estate broker and the ■ owner of real estate the broker is given the exclusive listing of the property for sale, and is to receive as compensation for effecting a sale of this property, as well as compensation for a prior sale of other real estate which the broker has effected for the owner, fifty per cent, of the amount received in excess of $50,000 for the owner’s equity in the property to be sold, and where the broker has through his efforts procured a purchaser ready, able, and willing to purchase the property, and who offers to do so upon the terms of the owner, the amount recoverable by the broker as damages, against one who tortiously conspires with and procures the owner to consummate the sale independently of the broker, either by making a sale to the customer procured by the broker or to another person, and thereby breaking the contract with the broker and defeating him in the collection of his compensation, is the amount which he would have earned under the terms of the contract.

3. Where the compensation contracted to be paid to the broker by the owner included compensation for prior services rendered by the broker to the owner in effecting the sale of other real estate belonging to the owner, a breach by the owner, as indicated in paragraph 2 above, in failing to pay the broker the compensation earned, will not authorize the broker to rescind the contract by which he was to obtain a compensation of fifty per cent, of the amount received by the owner in excess of $50,000 for his equity in the property to be sold, as the broker’s compensation for selling both pieces of real estate. The broker’s damage is as indicated in paragraph 2 above, and is not the amount of a commission which the owner had contracted to pay to the broker under the first contract, which had become merged into the latter contract, and is not the amount of a commission at the customary rate upon the purchase price of the last piece of property sold.

4. In a suit by the broker against the owner and others to recover damages resulting from an alleged conspiracy or a joint act of the defendants causing and procuring the owner to break a contract of sale effected by the broker with the prospective purchaser, and thereby defeating the broker in his efforts to collect a compensation earned by him in effecting the sale, where the broker alleged that the sale which he effected was an agreement between the owner and the prospective purchaser whereby the owner was to exchange his property for property of the prospective purchaser, and where the broker alleged his damages in two counts, in one of which ho alleged that his damage was an amount equal to fifty per cent, of the excess over $50,000, the selling price in the trade of the owner’s equity in the property sold', and a commission at a certain per cent, upon the property taken in exchange, and in the other of which counts he alleged that his damage was the amount of a commission at a certain per cent, upon both pieces of property represented in the trade, and also a commission upon the real estate which the broker had on a former occasion sold for the owner, and where the verdict was in an amount representing a commission at a certain per cent., as alleged and sued for in the petition, upon the selling price of the real estate sold belonging to the owner, and which, under the ruling in paragraph 1 above, was not the legal measure of damages, the court erred in nót instructing the jury as to the measure of damages. The verdict for the plaintiff was not legally authorized. Por a statement of the allegations in the plaintiff’s petition, see Luke v. DuPree, 158 Ga. 590 (124 S. E. 13).

5. Where a real-estate broker has found a' purchaser for property listed with him by the owner for sale, and the owner interferes with the negotiations, either for the purpose of defeating the broker in the collection of compensation or for the purpose of furthering a consummation of the trade by obtaining an amelioration in the terms of certain incumbrances on the property which the prospective purchaser must assume, and by such interference causes another person to purchase the property and to immediately resell and convey it to the prospective purchaser procured by the broker, upon terms less onerous than the terms originally agreed upon in the trade negotiated by the broker, such purchaser procured by the owner is not guilty, either through a conspiracy or a joint act or otherwise, of causing a loss to the broker by reason of the failure of the owner to pay the broker the compensation earned, where the purchaser acted bona fide and for his own legitimate interest and in ignorance of the existence of any contract between the owner and the broker.

6. Where the purchaser procured by the owner was the wife of a former owner of the property, and was procured through the instrumentality of the husband, who was liable for incumbrances upon the property, the husband was not the agent of the wife in her purchase of the property, and any knowledge which he may have had of the existence of the 'contract for commissions between the owner and the broker, or any intention which the husband may have had to aid in the defeat of the collection of compensation by the broker, was not imputable to the wife.

7. It appearing from undisputed evidence that the purchaser procured by the owner, which purchaser was the defendant Mrs. Magnolia Kerr, had no knowledge of the contract between the owner and the broker, and that her husband did not act as her agent in negotiating her purchase of either of the pieces of the property, the verdict against her was without evidence to support it.

8. It appearing from undisputed evidence that the only connection that the defendant Mrs. Mattie Luke had with the transaction was to consent to take, and to take, a deed conveying to her the property which, under the terms of the trade negotiated by the broker, was to be taken by the owner, her husband, in exchange, which deed was destroyed and which plan was abandoned, and which property was afterwards deeded to the defendant Mrs. Magnolia Kerr, and that no act of Mrs. Mattie Luke contributed in any manner to the consummation of the trade actually made and ‘which it is alleged caused the plaintiff’s damage, the verdict against her was without evidence to support it.

Decided February 25, 1926.

Complaint; from Fulton superior court—Judge E. D. Thomas. February 10, 1925.

Weltner <& Sims, Anderson, Rountree & Crenshaw, for plaintiffs in error.

Hill & Adams, Colquitt & Conyers, contra.

9. Except as indicated, no error appears.

Judgment reversed.

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


text:
    16418.
    Carson v. Rose, receiver.
    Receivers, 34 Cyc. p. 314, n. 72; p. S29, n. 87 New.
    Trial, 38 Oye. p. 1563, n. 68.
   Stephens, J.

1. Where land advertised as belonging to a named person is described as being “part of” indicated land lots, containing a definite number of acres, more or less, in a particular county and in a particular militia district, a definite number of miles in a certain direction from a particular town upon a particularly described road, and having “such shapes, metes, courses, and distances” as appear from a plat made by a named person upon a certain date and attached to the abstract, and containing the names of the owners of parts of some of the adjoining lots, the description furnishes sufficient data from which the land may be identified. Bunger v. Grimm, 142 Ga. 448 (83 S. E. 200, Ann. Cas. 1916C, 173); Derrick v. Sams, 98 Ga. 397 (25 S. E. 509, 58 Am. St. R. 309); Beardsley v. Hilson, 94 Ga. 50 (6) (20 S. E. 272); Elwell v. New England Mortgage Security Co., 101 Ga. 496 (4) (28 S. E. 833) ; Hancock v. King, 133 Ga. 734 (66 S. E. 949).

2. Where an advertisement for the sale of land by a receiver recites that the land, which is not described as belonging to any particular person, is to be sold in accordance with a judgment and decree in the case of a certain plaintiff against a certain defendant, the advertisement will be construed as indicating that the .land described is land belonging to the defendant.

3. In a suit for purchase-money of land sold at a public sale by a receiver, where it appeared that in the advertisement for the sale of the land the description was as above indicated, and where it did not appear, from the evidence, that the owner of the land owned any other property upon the particular road and in the particular land lots, the defense interposed, to the effect that the description of the land in the receiver’s advertisement was void for vagueness and uncertainty, was not sustained by the evidence.

4. Where it appeared from the advertisement of the sale that the land was to be sold subject to a particularly described outstanding loan, it was no defense that the defendant, at the time of his purchase, when he bid the amount sued for, did so under the understanding and belief that he was purchasing the entire interest in the property, free of encumbrances. Pledger v. Bank of Lyerly, 157 Ga. 229 (121 S. E. 228).

Decided February 25, 1926.

Complaint; from Chattooga superior court—Judge Wright. March 10, 1925.

The description of the property in the advertisement of the receiver was as follows: “State of Georgia, Chattooga County: Under and in accordance with a judgment and decree of the superior court of said county in 'the case of Bank of Lyerly et al. v. G. A. Pledger, directing the sale of the equity in the property hereinafter advertised, I will sell before the court-house door at Summerville, Georgia, on the 1st day of May, 1923, between the legal hours of sale, to the highest bidder for. cash, subject to an outstanding loan of $900.00 principal, with accrued interest thereon, due to the Federal Land Bank of Columbia, S. C., the following described property, to wit: All that certain piece, parcel, or tract of land containing 80 acres, more or less, being part of lots No. 117, 115, and 114 in 14th district and 4th section of said county, and in 1261 militia district and five miles south of Lyerly, Ga., and on the Georgia-Alabama road, and having such shapes, metes, courses, and distances as more fully appear by reference to the plat thereof made by W. L. Gamble, acting county surveyor on September 19, 1921, attached to the abstract. Parts of lots No. 117 bounded on east by A. Mitchell, that part of lot No. 115 and 114 bounded on north by William Beece and Oak Hill Church and east by T. S. Jones, south by T. S. Jones, and west by lands of Jesse Tucker as recorded in deed book 11, page 314. The interest in said property to be sold is the equity in said property set aside to G. A. Pledger as an exemption by the bankrupt courts, which said exempted property was held to be subject to the payment of the indebtedness'due to the plaintiffs in the case above referred to, and said exempted interest being ordered sold for the purpose of paying said debt. Said sale to be made subject to confirmation by the court. This the 21st day of March, 1923. J. M. Bose, Beceiver.”

Maddox, Matthews & Owens, for plaintiff in error.

John D. & E. 8. Taylor, Denny & Wright, contra-

5. The court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

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


author: Stephens, j.

text:
    16468.
    George et al., receivers, v. Rothstein & Nelson.
    Appeal and Error, 4 C. J. p. 783, n. 55; p. 1016, n. 47.
    Depositions, 18 C. J. p. 759, n. 89 New.
    Evidence, 22 C. J. p. 536, n. 92 New; p. 747, n. 58.
    Executors and Administrators, 24 C. J. p. 863, n. 76; p. 872, n. 79; p. 874, n. 13, 20.
    Trial, 38 Cyc. p. 1617, n. 34; p. 1618, n. 36; p. 1749, n. 8, 9, 98; p. 1759, n. 34; p. 1778, n. 73; p. 1779, i. 75, 76.
   Stephens, j.

1. Where an amendment to a motion for a new trial appears to have been approved by the trial judge prior to the date of the order overruling the motion, this court will presume, in the absence of evidence to the contrary, that the motion had been regularly presented and served upon the respondent as required by law and the terms of the order setting for hearing the motion for a new trial. See, in this connection, Ga. L. 1911, p. 149. The motion of counsel for the defendant in error that this court disregard the amendment to the motion for a new trial upon the ground that the date of its approval by the trial judge was after the date of the hearing on the motion, and that it does not appear that the amendment was presented and considered by the court upon the date of the hearing, is denied.

2. This being a suit by creditors .against the representative of the estate of a deceased debtor, to recover an alleged balance due upon promissory notes of the deceased, alleged to have been transferred to the plaintiffs by the payee thereof, upon which the executrix of the estate had made a payment, and it being alleged that when such payment was made it was agreed between the plaintiffs and the executrix, through an alleged authorized agent of the executrix, that the amount paid was accepted by the plaintiffs in full settlement of the indebtedness represented by the notes, provided that the estate proved to be insolvent, and it being further alleged that such agreement of settlement was induced by a false and fraudulent representation, authorized by the executrix, made to the plaintiffs by the alleged agent acting for the executrix, that the estate was insolvent, any declarations by the executrix afterwards made in letters to other creditors of the estate or to any other person, indicating an offer to settle with other creditors claims against the estate for less than their full amounts, are relevant and admissible in evidence as tending to establish a fraudulent intent on the part of the executrix at the time of making the alleged agreement by which the plaintiffs agreed to accept a less amount in settlement of the'claim sued for upon condition that the estate proved insolvent.

3. There being some evidence, by way of admission by the executrix to the attorney for the plaintiffs, that the payee of the note, who negotiated the alleged settlement with the plaintiffs, in so doing was an agent for the executrix, testimony of a witness for the plaintiffs that the payee of the note^ when making the settlements with the plaintiffs, approached the plaintiffs “as the representative” of the executrix, was admissible in evidence. Civil Code (1910), § 3606. This testimony is susceptible to the construction that the witness was testifying to a fact, and not to a conclusion, the fact being that the capacity in which the payee purported to act in making the settlement was that of agent for the executrix.

4. Where an objection to the introduction in evidence of interrogatories offered by the plaintiffs was made upon the ground that the envelope in which the interrogatories had been transmitted through the mail to the clerk’s office had been opened in violation of the terms of an agreement between counsel respecting the transmission and receipt of the interrogatories, the foundation for the objection was not shown where the contents of the agreement did not appear. The court did not err in admitting the interrogatories over the objection urged.

5. The exclusion of testimony of the son of the executrix that the payee of the note had never been the agent of the executrix affords no ground for reversal, since it appears from the brief of evidence that testimony to that effect from this witness was admitted.

6. It was not error for the court to charge that the jury should take-into consideration the contentions of the parties and apply the law to the facts in rendering a verdict.

7. A charge to the jury that notes against an estate have priority over accounts was applicable to the issue, and could not have been prejudicial to the defendant.

8. A charge of the court that upon proof of certain facts.a verdict should be found for the defendant is not subject to the exception that the charge placed the burden of proof upon the defendant. Such objection is particularly without merit where the court elsewhere in the charge instructed the jury generally that the burden of proof was upon the plaintiffs.

9. Nothing said by the trial judge either in the charge or otherwise is susceptible to the construction that it amounted to an expression of opinion upon the facts, or that the court inaccurately quoted any of the testimony.

10’. There was evidence authorizing the inference that the alleged agreement recited in the petition was made by an authorized agent of the executrix, that the estate afterwards proved solvent as respects its ability to pay the notes sued on, when their priority as claims against the estate are considered, that the agreement to accept the sum paid in full settlement of the notes on' the condition named was induced by the fraud alleged, and the court did not err in submitting these issues to the jury.

11. The only evidence of agency being a statement by the son of the executrix, made in her presence to the attorney for the plaintiffs, prior to the execution of the alleged settlement of the notes, that he (the son) expected to take up, with the payee of the notes in New York, who was his uncle, the matter of paying the notes, and that the payee was going to attend to the matter for him, and the testimony of a witness for the plaintiffs that the payee, when negotiating with him the settlement of the notes, acted “as the representative” of the executrix, and there being no evidence of any after-acquired knowledge upon the part of the executrix or her son, who transacted business for her, of the terms of the alleged agreement made by the payee, there was no evidence of ratification of the alleged terms of the agreement between the payee and the plaintiffs, and the court erred in charging the jury that if the executrix ratified the act of the alleged agent she would be bound by any representation which the alleged agent may have made. This charge was calculated to impress upon the jury that if the executrix made the payment upon the notes in ignorance of the alleged conditions or representations as to insolvency, made by the payee to the plaintiffs in New York, the executrix thereby ratified the agreement negotiated by and the representations made by the payee. This was error prejudicial to the defendant, and requires a reversal of the judgment overruling' the motion for a new trial.

Decided February 25, 1926.

Complaint; from Morgan superior court—Judge Park. March 21, 1925.

E. H. George, for plaintiffs in error. E. B. Lambert, contra.

12. Except as indicated above, no error of law appears.

Judgment reversed.

Jenldms, P. J., and Bell, J., concur.


text:
    16471.
    Singer Sewing Machine Company v. Sloan.
    Executions, 23 C. J. p. 598, n. 49 New.
    Decided February 25, 1926.
    Certiorari; from Bartow superior court—Judge Tarver. March 23, 1925.

      William T. Townsend, for plaintiff in error.

      Finley & Henson, contra.
   Stephens, J.

This being a claim case, and the entry of levy failing to show that the property at the time of the levy was found in the possession of the defendant in execution, the magistrate before whom the case was tried by a jury erred in ruling, in the presence of the jury, that the burden of proof was upon the claimant. The court, therefore, erred in not sustaining the certiorari. Singer Sewing Machine Co. v. Crawford, 34 Ga. App. 719 (131 S. E. 103).

Judgment reversed.

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


text:
    16510.
    GEORGIA-ALABAMA POWER COMPANY v. FIELDS et al.

    The defendant pleaded a valid contract, by the terms of which its liability for damage to the plaintiffs was limited to an amount less than that found for the plaintiffs.
    Waters, 40 Cyc. p. 692, n. 8.
    Decided February 25, 1926.

      Action for damages; from Dougherty superior court—Judge Custer. April 15, 1925.
    Application for certiorari was denied by the Supreme Court.
    The plaintiffs sought to recover for damage from backwater caused to accumulate on their lands by the erection of a dam by the Georgia-Alabama Power Company. The defendant admitted liability in an amount computed at the rate of $12 per acre, which it alleged was the damages as fixed by a contract in writing between Mrs. W. Y. Fields and Joseph S. Davis, under whom the plaintiffs and the defendant respectively claim. The defendant in its plea alleged that certain stock in the power company, referred to in the contract, had been delivered to and accepted by Mrs. Fields. A demurrer to the plea attacked the contract as invalid, the demurrer was sustained and the plea stricken, and judgment was entered for the plaintiffs in an amount agreed upon by counsel, as representing the actual damage to the plaintiffs, and in excess of the amount computed under the provisions of the alleged contract.
    The sole question for determination is the validity of the alleged contract, which reads as follows:
    “Georgia, Dougherty County.
    “This agreement, entered into this the 12th day of January, 1907, by and between Mrs. W. Y. Fields, of the said State and county, party of the first part, and Joseph S. Davis, of Dougherty County and State of Georgia, party of the second part, witnesseth, that for and in consideration of one hundred ($100.00) dollars in cash, the receipt whereof is hereby acknowledged, paid by the said Joseph S. Davis to the said Mrs. W. Y. Fields, the said party of the second part, his heirs or assigns, the water rights and privileges appertaining to land lots No. 291 (two ninety-one) and No. 288 (two eighty-eight), lying on the north banks of the Flint river in the first district of Dougherty county, Georgia. Also for and in consideration of twelve dollars ($12.00) per acre for any overflow damage that may result from the rising of the water by reason of the erection of a dam across the Flint .river, one and three-fourths (1 3/4) miles above Albany, Georgia, to the above-enumerated lots as well as to any land which the said Mrs. W. Y. Fields may own in Dougherty county or Lee county, Georgia. The damage to be determined by survey at the expense of the said Joseph S. Davis at any time called for by the said Mrs. W. V. Fields. It is also hereby agreed and covenanted by and between the said parties of this contract that when the company to develop the water-power on the said Flint river is organized, that stock is ready to be issued, that the said party of the first part is to receive from said company seven shares of the capital stock of the said company, value one hundred dollars ($100) each. This agreement is hereby signed in duplicate, and each party hereby warrants to defend the rights and privileges herein conveyed to the other against themselves and the claims of any persons whatsoever.
    “Signed, sealed and delivered in the presence of:
    “R. A. Malone, “Mrs. W. V. Fields (L. S.)
    “I. C. Gortatowsky, “J. S. Davis (L. S.)”
    “N. P. Do. Co., Ga.”

      Milner & Farlcas, for plaintiff in error.

      Pope & Bennet, contra.
   Stephens, J.

(After stating the foregoing facts.) Properly construed, the alleged contract is to the following effect: Mrs. W. Y. Fields conveys to Joseph S. Davis the water rights and privileges appertaining to land lots 291 and 288, as particularly described, and also agrees to accept from Joseph S. Davis $12 per acre as compensation for any damage to the described lands of Mrs. W. Y. Fields caused by the overflow of water resulting from the erection of the dam, for and in consideration of the payment to her by Joseph S. Davis of $100 cash, representing the value of the water rights and privileges conveyed, and a promise by Joseph S. Davis to convey to Mrs. W. Y. Fields seven shares of the capital stock when the company to develop the water-power is organized. Whether or not this agreement constitutes a contract or merely an offer by Mrs. W. V. Fields, her offer was accepted by Joseph S. Davis by the delivery to her and the acceptance by her of the stock described in the contract. The court therefore erred in striking the defendant’s plea and finding in favor of the plaintiff in an amount larger than that due under the terms of the contract.

Judgment reversed.

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


text:
    16610.
    Rogers v. Jordan.
    Judgments, 34 O. J. p. 657, n. 87 New; p. 678, n. 36 New.
    Trial, 38 Oye. p. 1574, n. 21.
    Decided February 25, 1926.
    Revival of judgment; from Toombs superior court—Judge Hardeman. May 35, 1935.

      C. L. Cowart, for plaintiff in error. IF. T. Burlchalter, contra.
   Stephens, J.

1. Where one of several defendants in a dormant judgment is dead, and yhere he has left no estate or his estate is insolvent, the judgment may be revived as to the surviving defendants only. It would be a useless and futile act to obtain the appointment of an administrator upon the estate and revive the judgment as against the insolvent estate of the deceased defendant. This ruling is not in conflict with the decision in the case of Funderburk v. Smith, 74 Ga. 515, that a dormant judgment could not be revived without making a nonresident defendant a party. 34 C. J. 677. See, in this connection, Austell v. Langston, 133 Ga. 738 (66 S. E. 917) ; Hall v. Woolley, 59 Ga. 756.

2. Where the dead man had filed an affidavit of illegality to a levy made as against him alone, and where the pendency of such proceeding may have operated to delay the enforcement of the judgment as against him and keep the judgment from becoming dormant as against him, the pendency of such litigation, to which the other defendants were not parties, did not operate to prevent the dormancy of the judgment as against them. Mays v. Compton, 13 Ga. 269; Saffold v. Wade, 56 Ga. 174 (2).

3. This being a scire facias to revive an alleged dormant judgment against all the defendants except one who had died and whose estate was alleged to be insolvent, the court did not err in overruling the demurrer to the petition, based upon the ground that it did not seek a* judgment as against all of the defendants.

4. Since, under the ruling in paragraph 2 above, it conclusively appears that the judgment as to the dead man had not become dormant, it is immaterial that his estate was not made a party to the present proceeding. The judgment being in life as to him, it was not error to direct a verdict reviving the judgment as against the other two, defendants.

5. Furthermore, since the evidence conclusively establishes the insolvency of the estate of the dead' defendant, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

JenhAns, P. J., and Bell, J., concur.