text:
    17700.
    VICKERY v. THE STATE.
    The conviction of violating the prohibition law was authorized by the evidence, and the alleged newly discovered evidence would not probably have changed the result on another trial.
    Criminal Law, 16 C J. p. 1180, n. 74; p. 1206, n. 95.
    Decided December 14, 1920.
    Certiorari; from Campbell superior court — Judge Hutcheson. September 11, 1926.

      Lawrence S. Camp, H. A. Allen, for plaintiff in error.

      William B. Jones, solicitor, Claude C. Smith, solicitor-general, contra.
   Luke, J.

Vickery’s conviction in the city court of Eairburn, for violating the prohibition statute, was certioraried to the superior court. Vickery contended that the evidence did not authorize his conviction, and that upon the ground of newly discovered evidence he should be granted a new trial. Upon the petition for certiorari and the answer thereto, his conviction was authorized, and the alleged newly discovered evidence was not, in our opinion, sufficient to produce a different result upon another trial. The judge of the superior court, therefore, did not err in overruling the certiorari.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    17701.
    Watts v. The State.
    Decided December 14, 1926.
    Reuearinq denied January 11, 1927.
    Revocation of parole; from city court of Gray — Judge Barron. October 1, 1926.
    Application for certiorari was made to the Supreme Court'.

      B. D. Feagm, F. W. Tiflón, for plaintiff in error.

      Guy L. Anderson, solicilor, contra.
    Criminal Law, 17 C. J. p. 37, n. 88 New.
   Broyles, C. J.

“Where one is sentenced for'a violation of a criminal statute,' and, under the provisions of the act of the General Assembly approved August 16, 1913 (Ga. L. 1913, p. 112; Park’s Penal Code, § 1081 (a), (h), (e), (d)), on certain conditions named in the order, is allowed to serve the sentence ‘outside the confines of the chain-gang, jail, or other place of detention,’ and, while serving the sentence, violates the terms of his parole, and the court, upon the defendant being brought before it and after due examination, revokes its leave to the defendant to serve his term outside the chain-gang or other place of detention, this is not such a final judgment as is subject to review on a bill of exceptions.” Antonopoulas v. State, 26 Ga. App. 787 (107 S. E. 359). Under that ruling the case sub judiee can not be entertained by this court.

Writ of error dismissed.

Lulce, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17702.
    Chastain v. The State.
    Decided December 14, 1926.
    Possessing liquor; from city court of Tliomasville — Judge,MacIntyre. October 9, 1926.
    W. E. Chastain was convicted on the charge of having had possession and control of intoxicating liquor. From the evidence it appeared that he and his son Henry lived on different sides of a public road and about half a mile apart on the same plantation, and that officers went to their homes at the same time in a search for liquor, but found none. A jug which smelled as if it had had whisky in it was found under circumstances stated as follows: One of the officers testified: “Mr. Cobb [the other officer] left me at Henry’s place with Henry, who was.at home when we got there, and went on across the field and across the road to the home of the defendant W. E. Chastain. I saw the defendant come out of his house, walk out, and meet Mr. Cobb at the fence, where they had some conversation.' Mr. Cobb went across the field. I hid in some bushes not far from Henry’s house and saw the old man come across'the road and go to Henry’s house. He and Henry went back together to the old man’s house and stood there near the lot a few minutes and talked, after they liad both looked around for a minute or two. The old man raised his hand and pointed, and Henry went out in the potato patch to a point about 100 yards back of the old man’s house and picked up a jug and started to run across the field with it. . . There was a track leading out from the rear of the defendant’s house to where this jug was that Henry picked up in the potato patch. . . Henry said to me in the presence of the defendant and Mr. Cobb that the jug and its contents belonged to him and that his father had no knowledge of its being there . . , that the potato patch was his, and he was cultivating that part of the farm, that his father had nothing to do with it. I do not know who owns the crops or who planted or cultivated them,. . . The defendant did not go to where the jug was picked up; . . he raised his hand and pointed in the direction of where Henry went and got the jug. The jug was broken by Henry, but I smelled whisky in the corn patch and on the pieces of jug which he broke. . . There were several tracks leading from defendant’s house across potato rows 100 yards to where Henry Chastain found the jug.” Cobb’s testimony was in substantial accord with the foregoing testimony. The defendant, in his statement at the trial, said that he knew nothing about the jug or as to there being any whisky on the premises, that when he went to Henry’s place as stated by the witness, it was to see what the trouble was, and that he did not point to any particular place.

      Intoxicating Liquors,. 33 C. J. p. 761, n. 53; p. 762, n. 57.
   Broyles, C. J.

The evidence tending to connect the accused with the offense charged was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt.

Judgment reversed.

Luke, J., concurs. Bloodworth, J,, absent on account of illness.

Titus & Dekle, for plaintiff in error,

cited 34 Ga. App. 61.

J. Baird Edwards, solicitor, contra.


author: Luke, J.

text:
    17703.
    MORROW v. THE STATE.
    A correct judgment will not be reversed because a wrong reason was given for it.
    It is not cause for a new trial in a criminal case that after the trial the sole witness for the prosecution declared that his testimony was false.
    The affidavit of the movant in the extraordinary motion for a new trial was fatally defective.
    Criminal Law, 16 C. J. p. 1121, n. 53 New; p. 1189, n. 66; p. 1205, n. 84; p. 1232, n. 83, 85, 91; 17 C. J. p. 203, n. 96.
    Decided December 14, 1926.
    Certiorari; from Floyd superior court — Judge Maddox. September 6, 1926.

      John Camp Davis, for plaintiff in error.

      Alec Harris, solicitor, J. F. Kelly, solicitor-general, contra.
   Luke, J.

Morrow was convicted of violating tbe prohibition statute. His case was brought to this court, and the judgment was affirmed. See 34 Ga. App. 780. After the judgment of this court was made the judgment of the trial court, Morrow filed an extraordinary motion for a new trial, based upon alleged newly discovered evidence. This evidence consisted of affidavits of several witnesses who swore that since the trial they heard the witness for the State (whose testimony upon the trial convicted Morrow) state that he had sworn falsely upon the trial, that he had so testified because he had a probation sentence hanging over him, and that his testimony against-Morrow was the result of coercion on the part of the judge of the court who had sentenced him for a violation of the prohibition statute, and made his presence'in court and his testimony against Morrow in the instant case a condition precedent to his right to serve his sentence outside the confines of the chain-gang. The extraordinary motion for a new trial was overruled by the judge upon the ground that “it does not appear that the witness, Barney Pearson, whose testimony is attached to said motion, has been convicted of the offense of perjury in this case, as is provided in section 5961 of the Code of 1910.” Morrow sued out certiorari, the certiorari was overruled by the judge of the superior court, and Morrow .excepted.

Conceding, but not deciding, that the provisions of section 5961 of the Civil Code (1910) are not applicable to this case, the judgment overruling the extraordinary motion for a new trial should nevertheless be affirmed. It is well settled, by repeated rulings of this court and of the Supreme Court, that if the judgment of the trial court is correct for any reason, it should be affirmed, although the trial court may have given a wrong reason for its judgment. It is also well settled by numerous decisions that' the fact that a witness for the State in a criminal case, though he be the only witness for the prosecution, has made declarations, since the trial, that his testimony given upon the trial was false, is not cause for a new trial; and, a fortiori, it is not cause for a new trial on an extraordinary motion therefor, such motions not being favored by the courts. Furthermore, the affidavit of the accused and his counsel are fatally defective, in that the accused failed to state in his affidavit that he could not have _ discovered the alleged newly discovered evidence before his first motion for a new trial by the exercise of ordinary diligence, and his counsel failed to state in their affidavit that they did .not know of the alleged newly discovered evidence before they filed the first motion for a new trial. It follows that the overruling of the certiorari was not error.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


author: Lxjke, J.

text:
    17706.
    Durrence v. The State.
    Decided December 14, 1926.
    Possessing liquor; from McIntosh superior court — Judge Sheppard. September 18, 1926.

      H. H. Elders, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 252, n. 16; p. 271, n. 41.
   Lxjke, J.

There was ample evidence to authorize the conviction of the accused, and the verdict has the approval of the trial judge. Neither of the special grounds of the motion for a new trial, the one assigning error upon an excerpt from the charge of the court, and the other based upon newly discovered evidence, requires a reversal. The defendant has had a legal trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


author: Stephens, J.

text:
    17113.
    Hosch v. Saunders.
    Decided December 20, 1926.
    Complaint on bond; from Barrow superior court — Judge Stark. November 28, 1925.

      G. A. Johns, for plaintiff in error. B. E. Kimball, contra.
    Appeal and Error, 4 O. J. p. 577, n. 88.
    Attachment, 6 O. J. p. 341, n. 18; p. 342, n. 23 New.
   Stephens, J.

1. A representation to this court that the plaintiff in error, who is complaining of a judgment against him in a certain sum as defendant in the court below, will make applicaton for a discharge in bankruptcy, and that the defendant in error renounces any right, title, or interest whatsoever in the judgment obtained, and that therefore the question now presented in the bill of exceptions has become moot, is not sufficient to show that the question under consideration has become moot, and therefore is not sufficient as a ground for dismissal of the bill of exceptions.

2. No judgment upon a dissolution bond given by the defendant in attachment can be maintained against the surety thereon where no judgment has been obtained in the attachment suit against the principal debtor. A judgment rendered upon the same cause of action in another suit instituted by the same plaintiff against the same principal debtor is not such a judgment against the principal debtor as is sufficient as a condition precedent to the rendition of a judgment against the surety upon the dissolution bond in the attachment proceeding.

3. The above ruling applies whether or not the surety upon the dissolution bond given by the defendant in attachment is dischargeable by reason of an adjudication in bankruptcy of the principal debtor, as in either event, before a judgment can be maintained against the surety upon the dissolution bond, a judgment in the attachment proceeding must be rendered against the principal debtor. See, in this connection, Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25); Light v. Hunt, 17 Ga. App. 491 (87 S. E. 763).

4. The motion to dismiss the bill of exceptions is denied, and the judgment of the lower court is reversed.

Judgment reversed.

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


author: Beta, J.

text:
    17213.
    PLANTERS WAREHOUSE COMPANY v. McMEKIN.
    If, in the trial of a case before a jury, a paper, embodying propositions of law submitted to the court as requested charges, improperly falls into the hands of the jury and remains with them during their deliberations, the presumption, in the absence of anything to the contrary, is tliat the jury read the paper, and if its contents are calculated to influence the jury in favor of one of the parties, and the jury finds for that party, a new trial should be granted, even though the court nray have given in charge the propositions of law as requested.

      Eactors, 25 C. J. p. 342, n. 25.
    New Trial, 29 Cyc. p. 808, n. 62; p. 1008, n. 46 New,

      (a) Under the ruling stated, one of the grounds in the motion for a new trial in this ease was good, and the court erred in overruling the motion.
    Decided December 20, 1926.
    Trover; from Wilkes superior court — Judge Perryman. February 19, 1926.

      C. E. Sutton, Colley & Colley, William Wynne, for plaintiff in error.

      B. W. Forison, contra.
   Beta, J.

McMekin brought a suit in trover against Planters Warehouse Company, for the recovery of sixteen bales of cotton. The trial having resulted in a verdict in favor of the plaintiff, the defendant made a motion for a new trial, which the court overruled, and the movant excepted.

The plaintiff had stored the cotton in the defendant’s warehouse and had obtained from the defendant a loan of money thereon, and the plaintiff contended that the defendant’s subsequent sale of the cotton was made under circumstances rendering it a conversion. One of the principal issues of fact upon the trial was whether the defendant was a mere warehouseman and pledgee, having power to sell the cotton only in accordance with the provisions of the Civil Code (1910), § 3530, or was a factor in the transaction, having authority to sell the cotton in the exercise of discretion, according to the general usages of the trade. Civil Code (1910), § 3502. The plaintiff filed written requests to charge, embodying certain propositions of law having reference to that question. The court gave the charges, as requested, and in some way the paper containing them, without the fault of either party or of any of the counsel, got with the pleadings and documentary evidence, and was taken by the jury to their room, and remained in their custody with the other papers until the rendition of the verdict. Counsel then discovered for the first time that this document had been in the hands of the jury. A ground of the motion for a new trial is predicated upon the circumstances stated above with reference to the requests to charge. The following is a copy of the paper in question:

“Plaintiff requests the court to charge: ‘I charge you, gentlemen, that a factor is defined to be a commercial agent, employed by a principal to sell merchandise consigned to him for that purpose, for and in behalf of the principal, but usually in his own name, being entrusted with the possession and control of the goods, and being remunerated by a commission commonly called factorage.’ ”

“Plaintiff requests the court to charge: ‘And in this connection I also charge you that the word “commission,” as used in the foregoing definition of a factor, may be defined to be the compensation or reward paid to a factor, broker, agent, bailee, etc., when the same is calculated as percentage on the amount of his transactions or the amount received or expended by him.’”

“Plaintiff requests the court to charge: ‘I charge you, gentlemen, that a warehouseman, in the general acceptation of the term, is one who receives and stores goods of others as a business and for a compensation or profit.’” , .

“Plaintiff requests the court to charge: ‘I charge you, gentlemen, that the primary distinction between a mere warehouseman and a factor and commission merchant is to be found in the purpose of the bailment or agency or contract of storage. If the purpose is primarily one of storage, the agent is a warehouseman; if it be one of sale, he is a factor. A warehouseman can be constituted the agent to sell without being also a factor. A factor can store and keep the goods of his principal without being a mere warehouseman. If the goods are entrusted to the agent primarily for safekeeping and holding, the agent is a warehouseman, but if they are entrusted to him primarily for him to sell them for the principal for a commission, then the agent is a factor. The agent can be both a warehouseman and a factor, but the mere fact that an agent makes advances or lends money on the goods entrusted to him does not make him also a factor. To make him a factor he must also be entrusted with the possession, control, and disposal of his. principal’s goods for a commission. A mere warehouseman can make advances or loans on the goods stored with him without being a factor. A factor is a mere agent, and the contract between him and his principal is one of employment to sell goods on commission for his principal, while a warehouseman is one who receives and stores goods of others as a business, and for a compensation or profit.’”

The plaintiff in error makes no contention that any of the propositions stated in the requests were unsound or inapplicable, and we are not deciding any question of that character. In the absence of anything to the contrary, the presumption is that the jury read the contents of the document. Abbott v. State, 24 Ga. App. 367 (3) (100 S. E. 759). The question for determination, therefore, is whether they were likely influenced thereby favorably to the plaintiff, the prevailing party. We should think that ordinarily it would not be cause for a new trial for a request to charge to come into the hands of the jury and be read by them, where it stated the law correctly, and also with equal fullness and fairness with respect to the contentions of both parties. But we are unable to say, in view of the entire record in this case, that the .requests quoted above were not calculated to influence the jury in favor of the plaintiff. On the contrary, we think it probable that the defendant was prejudiced. Our reason for this conclusion is based mainly upon the following facts and circumstances: The evidence showed without dispute that the defendant, as to all cotton stored in its warehouse, charged a flat or fixed rate of $1 a bale per month for the first month and 50 cents per month thereafter, to include all charges for storing, insuring, and selling. It is noticed that one of the propositions contained in the requests undertook to define a factor, and, in doing so, referred to a factor’s remuneration as being by a commission commonly called factorage, and then defined the word commission, “as used in the foregoing definition of a factor,” as the compensation or reward paid to a factor “when the same is calculated as a percentage on the amount of the transactions, or the amount received and expended by him.” The definition of a factor as thus stated appears to have been correct as far as it went, but was too limited under the facts of the present case. A factor’s remuneration need not be by way of commission. It may be a salary or other fixed compensation. 12 Am. & Eng. Enc. of Law, 628; 25 C. J. 342. It is true, the court instructed the jury, independently of the plaintiff’s requests, that the mere fact that the defendant charged a flat rate, to include storing, insuring, and selling, would not prevent the defendant from being a factor; and this additional charge rendered the definition of a factor sufficiently comprehensive to cover the facts of the present case. But when the jury, during their deliberations, read the propositions of law stated in the requests to charge, all of which the court had given as requested, they probably determined whether the defendant was a factor solely by the propositions set forth in the requests, overlooking the other instructions which the court had given on' the subject of a factor’s compensation and which the jury carried out with them only in such memory as they were able to exercise on the subject. Looking to the requests alone, they probably inferred that the defendant was not a factor, because its compensation was not determined in the manner set forth in the requests. One of the defendant’s principal contentions was that it was a factor, and, with this question resolved against the defendant, a verdict in favor of the plaintiff: in some amount was demanded. We can not hold that the presence of the requests to charge in the jury-room and in the hands of the jury during their deliberations was a mere irregularity. Our opinion is that it vitiated the verdict. Gholston v. Gholston, 31 Ga. 625 (11); Shedden v. Stiles, 121 Ga. 637 (4) (49 S. E. 719); Chattahoochee Brick Co. v. Sullivan, 86 Ga. 50 (6) (12 S. E. 216); Ga. R. Co. v. Dooley, 86 Ga. 294 (3) (12 S. E. 923, 12 L. R. A. 342).

We disagree with the contention of counsel for the defendant in error that the evidence demanded a finding to the effect that the defendant was a mere warehouseman and pledgee. There is no merit in any of the other grounds of the motion for a new trial.

Judgment reversed.

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


text:
    17215.
    Citizens Bank v. Popkin.
    Chattel Mortgages, 11 C. J. p. 737, n. 70 New.
   Stephens, J.

This being the trial of an issue formed upon a claim to personal property levied upon under a mortgage foreclosure, in which the burden of proof was upon the plaintiff, and it appearing, from the evidence, that the property claimed had been bought by the claimant from the defendant in execution, the mortgagor, but the only evidence tending to establish the identity of that property with the property described in the mortgage being certain circumstances sworn to by. a witness, from which the witness inferred that the property levied on and claimed was the identical property covered by the mortgage, the evidence was insufficient to establish conclusively, as a matter of law, that the property levied on was covered by the mortgage; and a verdict having been found for the plaintiff, this, the first grant of a new trial to the defendant, will be affirmed.

Decided December 20, 1926.

Claim; from city court of Metter — Judge Herrington presiding. February 8, T926.

STATEMENT OF FACTS BY STEPHENS, J.

The Citizens Bank foreclosed a mortgage which it held against Hood & Holder, covering certain property, including cotton, grown on described lands in Candler county, and the mortgage fi. fa. was placed in the hands of the sheriff for the purpose of levy and sale. The fi. fa. was levied upon two bales of cotton, and Morris Popkin filed a claim thereto. It appeared, from the evidence, that the claimant bought the cotton from the mortgagors in the town of Stillmore, which is in an adjoining county. .The evidence relied on by the plaintiff for the purpose of proving that the property levied on was grown upon the land described in the mortgage was the testimony of a witness as follows: “That is the cotton made on that farm. . . ■ I was over there the afternoon before these fellows hauled this cotton away. I did not see them move that cotton. I did not see them on the road with it. I did not see them carry it to the gin at Stillmore. I know that this is their cotton. I saw it in his field on the wagon. I do not know whether it was picked and carried to Stillmore or not. I did not see it going . . I saw this cotton before it was ginned in the field. I did not go behind the wagon. I went up to Still-more and found it there. I know it was the same cotton because the wagons came back and told me so. I found the cotton there in their names. I think I know it is the same cotton. I believe it so strong enough to know it.”

The jury found the cotton subject to the levy, the claimant made a motion for a new trial, which was granted, and the plaintiff excepted.

Kirkland & Kirkland, for plaintiff.

Kimbrough & Brown, for defendant.

Judgment affirmed.

Jenfoins, P. J., and Bell, J., concur.


author: Bell, J.

text:
    17219.
    CORLEY v. JARRELL, sheriff, for use, etc.
    Where land was conveyed by a deed to secure a debt, and the grantee’or his assignee obtained a judgment against the debtor upon the debt and had the land levied on and sold under an execution issued thereon, without the filing and recording of a deed reconveying the land to the debtor, the levy and sale were void, and one who bid off the land at the sale could not be compelled to pay the amount of his bid and accept the sheriff’s deed to the property.
    Executions, 23 O. J. p. 350, n. 13; p. 655, n. 51.
    Decided December 20, 1926.
    Complaint; from city court of Greenville — Judge Revill. January 21, 1926.

      Jones & Strother, N. F. Culpepper, for plaintiff in. error.

      M. Z. O’Neal, R. A. McGraw, contra.
   Bell, J.

Henry Dozier, owner of a parcel of land in the city of Manchester, conveyed the same to a bank to secure a loan of money. He was, or became, indebted also to I. H. Davis who bought the bank's debt and obtained judgments on both claims. The land was levied on and sold in October, 1919, to satisfy executions issued on both judgments. J. P. Corley, who was the successful bidder for the property at $250, subsequently refused to pay for it. The sheriff notified Corley that he would resell the property at his risk, and did resell to one Williams for $150. The present action by the sheriff, for the use, was to recover of Corley the difference between his bid and that at which the property was resold. Corley, in an amendment, which the court allowed, to his answer, alleged that no reconveyance of the property had ever been made to the defendant in fi. fa., but that the title remained in the bank under the security deed, and that because of this fact the levy and sale were void and the defendant was not liable. The court sustained a demurrer to this amendment, and struck it, for insufficiency in law. The trial having resulted in a verdict and judgment in favor of the plaintiff, the defendant brought the case to this court, complaining of the order striking his amendment to the answer and of the judgment overruling his motion for a new trial.

A security deed conveys the absolute title, and leaves the grantor no interest in the land which can be subjected to levy and sale by a creditor. “Even if it was ever the law of this State that a partial payment of the debt would give the grantor in the security deed a leviable interest in the land, or that, even where no part of the debt has been paid, a purchaser at a sheriff sale would acquire the debtor’s right to redeem by paying the money to the lender, such has not been the law since the passage of the Act of 1894 [Sections G037 and 6038].” Shumate v. McLendon, 120 Ga. 396 (8) (48 S. E. 10); Burkhalter v. Durden, 122 Ga. 427 (50 S. E. 144); Buchan v. Williamson, 131 Ga. 501 (62 S. E. 815); Parker v. Home Loan Asso., 114 Ga. 702 (1) (40 S. E. 724); Bank of LaGrange v. Rutland, 27 Ga. App. 442 (3) (108 S. E. 821). “Where the vendor of land who retained the title obtained against the vendee a judgment for a balance of the purchase money, and had the land levied on and sold under an execution issued upon such judgment, without first filing and having recorded a deed conveying the land to the vendee, the sale was void and one who bid off the laird could not be compelled to pay the amount of his bid and accept the sheriff’s deed to the property.” McCord v. McGinty, 99 Ga. 307 (1) (25 S. E. 667). See also Hogg v. Truitt Co., 150 Ga. 139 (1) (102 S. E. 826). The. levy and sale being void, the doctrine of caveat emptor (see Pinkston v. Harrell, 106 Ga. 102, 31 S. E. 808, 71 Am. St. Rep. 242) is inapplicable. In 23 C. J. 655, § 623, it is said that “while the rule of caveat emptor generally applies to sheriff’s sales, yet in order to hold the purchaser liable for his bid, such title as the execution defendant actually had must have passed by the sale; and if the sale from any cause is inoperative to transfer the debtor’s interest such as it may be, the purchaser can not be held liable for the amount of his’ bid.” The instant case is to be differentiated from such cases as McDonald v. Ellis, 17 Ga. App. 471 (87 S. E. 711), and Hogg v. Truitt Co., supra, in each of which the defendant, because of facts not here present, was estopped from asserting the invalidity of the levy and sale.

The court erred in sustaining the demurrer to the defendant’s amendment. This ruling appears, under the record, to be controlling. We have therefore not deemed it necessary to state or decide other questions made.

Judgment reversed.

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


text:
    17249, 17250.
    THRELKELD v. ANTHONY; and vice versa.

    Irrespective of whether the evidence as to other defenses asserted in this case may have presented questions for determination by the jury, the evidence conclusively showed that the plaintiff servant had equal means with his alleged master of knowing of the alleged defect or danger which brought about his injury; and this being true, the court did not err in directing a verdict in the defendant’s favor.
    Master and Servant, 39 O. J. p. 769, n. 74; p. 853, n. 93,
    Decided December 20, 1926.
    Damages; from Fulton superior court — Judge E. D. Thomas. January 11, 1926.

      C. N. Anderson, for Threlkeld. A. L. Richards, contra.
   Bell, J.

Threlkeld brought .suit against Anthony to recover for personal injuries which he sustained when he fell from a scaffold on which he was standing while working as a carpenter on a building, the property of the. defendant. The plaintiff fell, because of the breaking of a plank in the scaffold on which he was standing. At the conclusion of the evidence’ on the trial of the case, the court directed a verdict in favor of the defendant, and to this ruling the plaintiff excepted. The defendant pleaded several defenses, one being that the house .was being erected by an independent contractor, one Rosser, for whom the plaintiff was working. Irrespective of whether, as to this defense or as to some others, the evidence may have presented issues for the jury, .we think that under the evidence the plaintiff, as a matter of law, could not recover, because it conclusively appears that he had equal means with his alleged master of knowing the defect or danger, if any, which caused his injury. The following facts are either as stated by the plaintiff or as shown by the undisputed evidence : ' The scaffold was built by the plaintiff’s fellow servant. Shortly afterward the plaintiff mounted it, and just as he was beginning work from his position upon it, the plank broke and he fell. The fellow servant who built the scaffold had told the plaintifE that it was “perfectly all right.” The plaintiff did not see anything wrong with the scaffold on which he was standing. None of the other scaffolds had broken with him. The plank which broke “looked to be a good two by four. You could not tell anything from the top of it, and there was not but about eight feet between the brackets.” Both Anthony, the owner, and Rosser, who the defendant alleged was an independent contractor, but who the plaintiff contended was the defendant’s agent, were absent at the time the scaffold was being build and until thé plaintiff had sustained his injury. For, so far as appears from the evidence, was any other person present during this time except the plaintiff and his fellow servant who had built the scaffold. The above embraces all the evidence bearing upon the question of negligence or upon the opportunities of the' plaintiff and the defendant to know of the condition which resulted in the plaintiff’s injury. Now, assuming that the evidence is sufficient to show a defect of some kind in the plank which broke with the plaintiff, no other inference is possible under the evidence than that the plaintiff had equal means with the defendant, his alleged master, of knowing of the defect. Where this is true the servant is not entitled to recover for the alleged negligence of his master. The court, under the record, did not err in directing the verdict in favor of the defendant. Civil Code (1910), § 3131; Callahan v. Atlantic Ice Co., 33 Ga. App. 330 (126 S. E. 278); Riverside Mills v. Brooks, 6 Ga. App. 67 (64 S. E. 282); Daniel v. Forsyth, 106 Ga. 568 (32 S. E. 621).

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

Jenlcins, P. J., and Stephens, J., concur.


text:
    17259.
    Fletcher v. Gordon.
    Decided December 20, 1926.
    Evidence, 22 O. J. p. 345, n. 15; p. 417, n. 62; p. 426, n. 30, 34.
   Stephens, J.

1. In a suit in trover an extrajudicial statement made by the plaintiff, derogatory of his own title to the property sued for, to wit, that prior to the suit he stated to the defendant that the property sued for belonged to a person other than himself, evidence against him by way of admission, and its probative, value is for the jury. Where, upon the trial of such a suit, such an extrajudicial statement had been admitted in evidence, and the plaintiff in his testimony denied that he had made such a statement, although the direct and positive testimony as to the plaintiff’s title was undisputed otherwise than by this extrajudicial statement, an issue of fact as to the plaintiff’s title was presented, and the direction of a verdict for him was error.

2. Applying the above rulings, the court ererd in directing a verdict for the plaintiff.

Judgment .reversed.

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

Trover; from city court of Ludo wici — Edwin A. Cohen, judge pro hac vice. February 8, 1926.

C. L. Cowart, for plaintiff in error. Ben. A. Way, contra.


text:
    17260.
    ROGERS v. SOUTHERN FERTILIZER AND CHEMICAL COMPANY.
    Where to a suit upon a promissory note the defendant filed a plea alleging that the note had been conditionally delivered in renewal of another note which the plaintiff at the time held against him, that such delivery was made with the understanding that the note was not to be a completed contract, or effective as an obligation, until surrender of the old note, and that the old note had never been returned or tendered to the defendant, the plea set forth a valid defense, and the court erred in striking it.
    Bills and Notes, 8 O. J. p. 206, n. 17; p. 738, n. 82; p. 739, n. 84.
    Decided December 20, 1926.
    Complaint; from city court of Eastman — W. M. Clements, judge pro hac vice. January 26, 1926.

      Roberts & Smith, for plaintiff in error. J. H. Milner, contra.
   Bell, J.

This was a suit upon a promissory note. The defendant pleaded, among other things, that the note had been delivered conditionally, in renewal of an old note held by the plaintiff against him. The defendant’s answer, in paragraph 12, as amended, alleged: That plaintiff is not entitled to recover on said note for the additional reason that when he delivered the same to said' agent for said plaintiff, said agent assured your defendant that he would return to your defendant the old note hereinabove referred to, and your defendant executed said note and delivered same to said agent for plaintiff with the additional understanding that the old note would be returned to him, and your defendant says that the same has never been returned to him, and accordingly defendant says that the note sued on is of no effect. That the note or contract sued on, apparently operative between the parties, in fact is not operative for the reason that the same was given with the understanding it was not to be a completed contract until the old or original note referred to in defendant’s answer was returned to him, plaintiff through said agent agreeing that he would return same, and it being understood and agreed between the parties aforesaid at the time of the execution and delivery of the note sued on, that said note would not be effective until the return of the old note aforesaid. Defendant says that the old note was never returned, and plaintiff never offered to return the same.” The court struck the defendant’s answer in its entirety and directed a verdict for the plaintiff. The part of the answer which we have quoted set forth a valid defense- and the court erred in striking it. It was consequenly error to direct a verdict in favor of the plaintiff. Civil Code (1910), § 4301; Moore v. Farmers Mutual Ins. Asso., 107 Ga. 199 (33 S. E. 65); Hansford v. Freeman, 99 Ga. 376 (27 S. E. 706); Bray v. Comer Mercantile Co., 32 Ga. App. 746 (124 S. E. 817); Williams v. Johnson-Brown Co., 28 Ga. App. 187 (1) (110 S. E. 497); Equitable Mfg. Co. v. Hill-Atkinson Co., 17 Ga. App. 494 (3) (87 S. E. 715); Adams v. Hatfield, 17 Ga. App. 680 (4) (87 S. E. 1099); Hartman Stock Farm v. Henley, 8 Ga. App. 255 (68 S. E. 957); Heitmann v. Commercial Bank, 6 Ga. App. 584 (3) (65 S. E. 590); 8 C. J. 737, 742.

Judgment reversed.

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


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

text:
    17305.
    WILLINGHAM STONE COMPANY v. WHITESTONE MARBLE COMPANY.
    1. “Three elements are essentials to a contract of sale: K An identification of the thing sold. 2. An agreement as to the price to be paid. 3. Consent of the parties.” Civil Code (1910), § 4106. In this suit in trover, it indisputably appearing that when the property sued for was turned over by the agent of the plaintiff to himself as the agent of the defendant it was without the knowledge or consent of either principal, and with no further purpose or intent than that the principals might thereafter agree upon a sale and the terms of a sale as between themselves, the transaction did not meet the requirements of a sale.
    2. While the effect and scope of the doctrine known as “the law of the case” does not extend to the lino of reasoning or argument set forth in the opinion rendered, it does include every applicable proposition of law actually applied to the facts and pleadings involved; and a rule thus announced, so far as it relates to the • case in which it was laid down, is, in all subsequent proceedings therein, binding alike upon the trial court and the appellate court announcing it. Biansal v. Columbian National Life Ins. Co., 27 Oa. App. 537, 542 (109 S. E. 297).

      Agency, 2 C. J. p. 838, n. 60.
    Appeal and Error, 4 C. J. p. 1093, n. 77; p. 1105, n. 43; p. 1106, n. 58; p. 1111, n. 81, 82.
    Sales, 35 Cye. p. 44, n. 94 New; p. 48, n. 17; p. 50, n. 27.

      (a) When this suit in trover was heretofore adjudicated by this court in reversing a directed verdict in favor of the defendant on the first trial (33 Qa. App. 512), the principle of law applied was that the action of the court below was error for the reason that it was a disputed issue, to be resolved by the jury, whether “the person from whom the defendant acquired the property and from whom he claimed to have bought it had authority as agent of the plaintiff to sell the property.” The ruling then made to the effect that the acts and conduct of the plaintiff might be taken as a ratification of the alleged agent’s conduct is binding upon this court as the law of the case; but since it appears that such acts and conduct of the agent did not amount to a sale, whether ratified or not, the former decision would not require the judge to submit the question of a sale to the jury, and he did not err in confining the issue to be determined by the jury to the amount of the plaintiff’s recovery as determined by the value of the converted property.
    Decided December 20, 1926.
    Trover; from Fulton superior court — Judge Humphries. March 13, 1936;

      John S. Wood, D. K. Johnston, for plaintiff in error.

      Augustine Sams, contra.
   Jenkins, P. J.

This was a suit in trover, brought by the Whitestone Marble Company against Willingham Stone Company, to recover certain belts and other articles alleged to have been wrongfully converted by the defendant. It appears that the articles sued for were a part of the equipment of plaintiff’s plant at -Whitestone, Georgia, and had been left in the manufacturing plant when operation of the same was suspended. It appears that one Gartrell was left by the plaintiff in charge of its plant and equipment as a caretaker, and in consideration of his services in looking after such property he was permitted to occupy a certain dwelling house on the premises. About January 1, 1930, Gartrell went to work for the defendant as superintendent of its plant at Whitestone, the same being a plant similiar to that of the plaintiff at the same place, and some time after his employment as the defendant’s superintendent, and while so employed, Gartrell carried -the belts and other articles sued for from the plant of the defendant and placed them in use in the defendant’s manufacturing business, where they appear to have remained for some time without the knowledge of either the plaintiff or the defendant. The plaintiff, after ascertaining through an independent source that the equipment had been so moved, communicated with Gartrell to ascertain what articles belonging to it had been carried to the defendant’s plant, writing Gartrell several letters before he replied.- Upon receiving such letters Gartrell communicated with Willingham as follows: “I am sending you this list so you had better go over and see Mr. Pratt (plaintiff’s president) today, as Is have to send him a list of this to-morrow. He has been on me three times in last few days about this.” With this letter he enclosed a list of the articles moved from the plaintiff’s plant to that of the defendant. The next day he sent a list of the articles to the plaintiff. Following receipt of Gartrell’s letter, Willing-ham communicated with Pratt, and several communications were had between them, looking to a sale of the articles then in the defendant’s possession, but no agreement was made with reference thereto. It was not disputed that the defendant was in possession of the articles sued for, but the defendant contended that it had purchased the articles from the plaintiff through Gartrell. It appears that Gartrell had previously sold certain other portions of Pratt’s equipment for him, and Gartrell testified that Pratt had authorized him to sell the articles in question for half price, but it does not appear that he made any sort of agreement with the defendant on behalf of the plaintiff for a sale of the articles in question; it appears that he simply carried them over to the defendant’s plant and put them in use there. When the plaintiff and the defendant failed to agree on a sale of the articles in controversy, the defendant offered to return them to the plaintiff and pay for the wear on them; this offer was refused and a suit in trover was instituted to recover the property. On the first trial the judge directed a verdict for the defendant, on the theory that it had become the purchaser of the goods sued for, and that, accordingly, the evidence failed to show a conversion. This action of the judge was reversed by this court, on the theory that the evidence did not demand a finding that such a sale had been effected, although it was stated in the opinion that the acts and conduct of plaintiff’s alleged agent might possibly have been ratified by the principal. On the second trial the judge ruled that, irrespective of any such ratification by the plaintiff, the agent’s acts and conduct did not amount to a sale, and that there had been a conversion by the defendant, and submitted to the jury, as .the only question to be determined by it, the value of the property so converted. . The jury found' for the plaintiff in the sum of $800, the defendant’s motion for a new trial was overruled, and the movant excepted.

Judgment affirmed.

Bell, J., concurs; Stephens, J., concurs specially.

Stephens, J.,

concurring specially. All that was held as respects evidence as to a sale, in the former decision of this ease (33 Ga. App. 512, 126 S. E. 859), was that the evidence did not as a matter of law demand the inference that the transaction was a sale. Any statement, if there was any, in that decision to the effect that the evidence might have authorized the inference that there had been a sale was unnecessary to the decision, and was therefore obiter and not the law of the case.

I concur in the judgment affirming the judgment of the trial court in the present case in directing a verdict for the plaintiff, upon the ground that the evidence does not authorize the finding that the transaction was a sale, by reason of the fact that the alleged sale, if made, was made by the alleged agent of the plaintiff to himself as the alleged agent of the defendant, without the express knowledge and consent of the plaintiff and in the absence of full knowledge on the part of the plaintiff of all the facts. See section 3583 of the Civil Code (1910).


author: Jenkins, P. J.

text:
    17325.
    BROOKS v. CAUSEY.
    1 “Notwithstanding the act of August 21, 1922 (Acts 1922, p. 114), which declares all crops to be personalty, the purchaser of lands under a power of sale in a security deed of Older date than said act, after its passage, acquired title to crops growing on such lands, grown after the passage of this act, if they were grown and owned by the grantor in such deed; but if the grantor had in fact, prior to such sale, rented in good faith these lands to others, who raised such crops, such purchaser did not. acquire title to them, but only the interest of the grantor in such deed in these crops.” Ohason v. O’Neal, ■ 158 Ga. 725 (158 S. E. 725).
    2. In this case it appears that the grantor in a security deed had taken a rent note for tlie premises, which note, having been transferred to a bona fide purchaser for value, was thereafter paid to the transferee by the tenant of the grantor, and the question is whether the purchaser at a sale of the land became the landlord of the signer of the rent note, and, as such, became entitled to the rents and profits of the land for that year, or whether the grantor of the security deed had parted with all interest in the crops by the transfer of the rent note (see Buti v. Story, 5 Ga. App. 540, 63 S. E. 658), with the effect that there remained no interest of his for the purchaser at the sale to acquire. Held: Under the ruling made in the Ohason case, supra, upon the sale of the land under the power granted in the security deed, the signer of the rent note ceased to be the tenant of the grantor in the security deed, and became the tenant of the purchaser of the land under that sale. Accordingly, since a satisfaction of rent can be made only by payment to the landlord or to a transferee of one occupying that status, and since neither the grantor nor the transferee of the-rent note continued to occupy the status of landlord, a payment of what purported to be rent to either could not satisfy the claim of the rightful landlord. This claim for rent the grantor in the outstanding security deed had no right to extinguish as against one who might become the rightful owner thereof, either by gift (Ohason v. O’Neal, supra) or by mortgage (Virginia-Carolina Ohemieal Oo. v. Floyd, 159 Ga. 555, 126 S. E. 378), or by a transfer, since a transferee would be in no better position than the transferor; “and as the transferor had parted with the title to the land before the maturity of the crop, he was not in position to enforce a lien, and the transferee could not do so; but the right to enforce a special lien for rent had arisen in favor of the purchaser of the land.” Ball v. Citizens Banh, 143 Ga. 55 (84 S. E. 122). Accordingly, payment of such a note to its transferee by its maker, who had ceased to be the tenant of its payee and had become the tenant of the purchaser of the land, could not affect the right, claim, or lien for rent of the purchaser of the land, who had thereby assumed the status of landlord. The court erred in sustaining the tenant’s counter-affidavit and in dismissing the levy of the distress warrant.

      Landlord and Tenant, 36 C. J. p. 384, n. 44; p. 485, n. 24; p. 530, n. 1.
    Mortgages, 41 C. J. p. 999, n. 80; p. 1000, n. 90; p. 1001, n. 98.

      Decided December 20, 1926.
    Distraint) from city court of Carrollton — Judge JIoocl. March 6, 1926.

      S. Holderness, for plaintiff. Smith & Milliam, for defendant.
   Jenkins, P. J.

This case was tried under the following agreed statement of facts, as shown by the bill of exceptions:

“(a) J. M. Brooks conveyed the land on which the cotton levied on was grown to G. S. Algood by warranty deed, consenting that Algood might convey the property to the Federal Land Bank of Columbia, S. C., to secure a loan of $2,000 on July 29, 1922, with the further agreement that, for the balance of the purchase-money. due Brooks for the land from Algood, . •. Algood would execute to Brooks a deed to said land, subject to the rights of said Federal Land Bank of Columbia. (6) Brooks' executed a deed to Algood. (c) Algood executed his loan deed to the Federal Land Bank of Columbia. (J) Algood then executed to Brooks a deed to secure the remainder of the purchase-money, subject to the rights of said bank, dated the 29th of July, 1922, and recorded August 14th, 1922, in Deed Book 23, page 8, in the office of the clerk of Carroll superior court, which said security deed gave Brooks the right, upon default in the payment of the purchase-money, to sell the equity of said Algood in said land and at said sale to become the purchaser himself, (e) In July, 1925, Algood having defaulted in the payment to Brooks, Brooks declared the debt due, advertised the land for sale, and on the 4th day of August, 1925, before maturity of growing crops thereon, sold said land and became the purchaser thereof at and for the sum of $2,250, executing to himself a deed, which said deed was recorded on the 4th of August, 1925, in Deed Book 28, page 365. (/) In the meantime and prior to the advertisement of sale of said property Algood had rented- said land to Sim Causey for the year 1925 for $300, to be paid in the fall of 1925, and Causey had executed to Algood his negotiable promissory note for said rent. (g) Before the maturity of said note Algood transferred the same for value to W. L. Stedham. (h) Causey paid Stedham, and paid him before the distress warrant in the instant case was sued out and before Brooks had made demand on him for rent, (i) Brooks thereafter, as will be shown by the distress warrant, sued out a distress warrant .against Sim Causey and caused the same to be levied on the crops grown by Sim Causey on 'the premises bought in by him on the 4th of August, 1925, and described in said loan deed. (/) Algood had consent possession' of said property through himself or tenants until the date of the sale in 1925. The facts are that before Brooks made Algood the deed above referred to, Algood held the property under a bond for title, and possession thereof under said bond, and the deed was made merely to enable Algood to borrow money, from the loan company, (ft) Algood traded the Causey note to Stedham in the spring of 1925 before the sale of the property. The distress warrant was in the usual form, and [was] sued on on September 16, 1925, for the sum of $300, and was levied on the same date on thirty acres of cotton in the field and thirty acres of corn in the field, and notice given Sim Causey, tenant in possession.”

The court sustained the defendant’s counter-affidavit, and dismissed the levy of the distress warrant, and to that ruling exception was taken.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17335.
    Seaboard Air-Line Railway Company v. Trask.
    Decided December 20, 1926.
    Complaint; from- Liberty superior court — -Judge Sheppard. February 15, 1926.

      N. J. Norman, Conyers & Gowen, for plaintiff.

      W. F. Mills, for defendant.
    Carriers, 10 C. J. p. 471, n. 92 New.
   Stephens, J.

1. In a suit by a railway company against a shipper to recover demurrage charges arising out of an intrastate shipment a written schedule of demurrage charges identified by a witness as “furnished” by the plaintiff, which was not shown to be a schedule of demurrage charges authorized by the State public-service commission, blit which contained on its face a statement that it was “national cardemurrage rules and charges,” was insufficient as proof of a schedule of demurrage charges authorized by the State public-service commission, and was properly rejected when offered in evidence.

2. Evidence of a witness for the plaintiff, the railroad company, that the correct demurrage charges were certain specified amounts, where it appeared that his testimony was based solely upon a schedule of charges furnished him by the plaintiff, which the witness stated contained correct charges for demurrage to be made upon freight-cars covering the period during which demurrage charges had accrued against the ear on which demurrage charges were claimed in this suit, was insufficient to establish the charges for demurrage authorized by the State public-service commission.

3. There being no evidence of a schedule of demurrage charges authorized by the State public-service commission, the court properly directed a nonsuit. Judgment affirmed.

Jenkins, P. J., and, Bell, J., eoneur.


text:
    17339.
    SLIGH v. SMITH et al.

    1. Where a suit in trover was amended, to show that after it was filed the plaintiff transferred to a named person all of his rights to the fruits of the litigation, and to provide that the suit should thereafter proceed “for the use and benefit” of the transferee, and where, after a verdict “in favor of the plaintiff,” in which no person was directly named, the defendant filed a motion for a new trial, it was proper that the service of the motion be made upon the original plaintiff, and not upon the transferee and usee named in the amendment to the petition; and this is true notwithstanding the judgment entered upon the verdict was in favor of the usee without mentioning the original plaintiff.
    2. Under the facts of this case there was no error in the refusal to dismiss the motion for a new trial for want of service upon the usee.
    New Trial, 29 Cyc. p. 937, n. 36 New.
    Parties, 30 Cye. p. 38, n. 32.
    Pleading, 31 Cye. p. 484, n. 40.
    Trover and Conversion, 38 Cye. p. 2044, n. 56.
    Decided December 20, 1926.
    Trover; from Ben Hill superior court — Judge Crum. March 2, 1926.

      B. D. Smith, for plaintiff.

      J. B. Wall, A. J. McDonald, for defendants.
   Bell, J.

H. K. Sligh brought an action of trover against Mrs. S. L. Smith for the recovery of a certain automobile. In an amendment to the petition the plaintiff alleged that since the filing of the suit the plaintiff “transferred for value to Mrs. Anna C. Sligh all of plaintiff’s rights to the fruits of this litigation, and plaintiff therefore prays that said suit proceed for the use and benefit of the said Mrs. Anna C. Sligh.” This amendment was allowed without objection or exception. The jury found a verdict “in favor of the plaintiff.” No person was named in this verdict, but the judgment rendered thereon ordered and adjudged “that the plaintiff, Mrs. Anna C. Sligh, recover,” etc. The defendant, Mrs. Smith, filed a motion for a new trial, entitled as in the case of H. K. Sligh versus Mrs. S. L. Smith. Service of this motion was made only upon H. K. Sligh. Counsel representing Mrs. Sligh thereafter moved to dismiss the motion, upon the ground that service upon H. K. Sligh was ineffectual as service upon Mrs. Sligh and that she, the real party, had not been served with a copy of the motion. The court overruled the motion to dismiss and, after hearing the motion for a new trial upon its merits, granted it. The bill of exceptions brought to this court assigned error upon the refusal to dismiss the motion for a new trial for want of service, and also on the judgment granting the new trial. There is no contention in the brief of counsel for plaintiff in error that the final judgment is erroneous unless it is so because of the alleged antecedent error in the refusal to dismiss the motion for a new trial.

Thus, the only question for decision is whether EL K. Sligh, the original plaintiff, was the proper person upon whom to perfect service of the motion for a new trial. The suit, after amendment, continued with the same plaintiff, but with the express allegation that it should proceed “for the use and benefit of the said Mrs. Anna C. Sligh.” In Norcross Co. v. Summerour, 114 Ga. 156 (3) (39 S. E. 870), the Supreme Court said: “The mere fact that a plaintiff in his pleadings declares his intention of suing for the use of a third person does not raise any question as to the liability either of the plaintiff or of the defendant to such third person. The words declaring the intention to use the recovery for the benefit of another are, as to the defendant, harmless surplusage. He is not concerned in what disposition is to be made of the recovery.” See further, in this connection, Dunlap-Huckabee Auto Co. v. Central Ga. Automotive Co., 31 Ga. App. 617 (122 S. E. 69), and cases cited.

Although a use plaintiff is sometimes referred to and regarded as the real party at interest, it would seem that Mrs. Sligh could not be considered as such under the facts of the instant trover case. The original plaintiff continued to be the plaintiff for the purposes of the record and of enforcing the rights of the usee. It follows that it was proper to make service of the motion for a new trial upon H. II. Sligh, the original plaintiff, and not upon Mrs. Sligh. This conclusion is not altered by the fact that the judgment was in favor of Mrs. Sligh, the usee, without mention of II. K. Sligh. The judgment did not conform to the record, as it should have been in favor of the original plaintiff or in his favor for use, etc. An irregularity in the judgment could not affect the procedure to be had on the motion for a new trial, and did not operate to require service upon the use plaintiff. Bullock v. Dunbar, 114 Ga. 754 (7) (40 S. E. 783); Adams v. Carnes, 111 Ga. 505 (4) (36 S. E. 597).

We do not here decide that in every case by one person as plaintiff- for the nse of another the defendant must serve the nominal plaintiff, and not the usee, with proceedings of which service is necessary to be made upon the plaintiff or opposing party. There may, perhaps, be cases in which the nominal plaintiff is so wholly without interest in the suit, or the results thereof, as to make the usee the proper person upon whom to perfect any service required to be made in behalf of the defendant. See, in this connection: Yatesville Banking Co. v. Fourth Nat. Bank, 10 Ga. App. 1 (4) (72 S. E. 528); Morse v. Turner, 20 Ga. App. 108 (1) (92 S. E. 767); Hardwick v. Fidelity & Deposit Co., 29 Ga. App. 567 (1) (116 S. E. 220); Wynn v. Maddox, 33 Ga. App. 87 (125 S. E. 516); Craig v. Webb, 70 Ga. 188 (1); Civil Code (1910), § 6176; 30 Cyc. 36-38; Tedrick v. Wells, 152 Ill. 214 (38 N. E. 625); McCormick v. Fulton, 19 Ill. 570. Since this is a trover case, and since- it is true that in cases of this character there can be no recovery by the plaintiff unless he had title at the institution of the action (Dunlap &c. Co. v. Central Ga. &c. Co., supra), the original plaintiff in the present case can not be regarded as a nominal and formal party only; and since it is further true that the amendment making the suit proceed in his name for the use of another appears to have been altogether unnecessary, adding surplusage only, the service of the defendant’s motion for new trial was properly made upon the original plaintiff, irrespective of what might be the rule in cases of a different character, as where the person in whose name the case proceeds' for the use of another is a nominal and formal party only.

Judgment affirmed.

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


text:
    17374.
    BRIDGES v. WILMINGTON SAVINGS BANK.
    Although there was an entry of default at the first term of the city court, the plea offered at the next term, there having been no judgment by default, was not too late, under the act creating the court, and the judge erred in disallowing it.
    Decided December 20, 1926.
    Courts, 15 C. J. p. 902,-n. 13; p. 903, n. 18; p. 987, n. 65.

      Complaint; from city court of Blakely — Judge Sheffield. April 19, 1926.

      Lowrey Slone, for plaintiff in error.

      Horace Bell, George H. Perry, contra.
   Jenkins, P. J.

This case is controlled in principle by the ruling made by this court in Daniel v. Nixon, 21 Ga. App. 206 (93 S. E. 1013). In the instant case, just as in the Daniel case, an entry of default was made at the first term, but no judgment by default against the defendant was entered. The defendant at the next term after the entry of default, but prior to any judgment by default, sought to file a plea, which was disallowed as being offered too late. In the Daniel case it was conceded by counsel on both sides that the entry of default was illegal because unauthorized. In the instant case, we think that, as a matter of law, the court was without power to render such a judgment. It is true that the act of 1906 (Ga. L. 1906, p. 161) creating the city court of Blakely authorizes the entering of a judgment at the first term in cases where no defense is filed on the first day thereof, and provides that “in all matters pertaining to service, pleading and practice, the law governing the superior court not in conflict with this act shall apply to the city court,” but it has been many times ruled that where the act specifically provides for a different scheme of procedure from that obtaining in the superior court, so as to make the superior-court practice as to defaults utterly inapplicable, such a general adoption of all consistent superior-court rules of pleading and practice could not be made applicable to defaults. See, in this connection, Beacham v. Kea, 118 Ga. 406 (45 S. E. 398); Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (41 S. E. 54); Florida Central R. Co. v. Luke, 11 Ga. App. 290 (75 S. E. 270); Jenkins v. Whittier Mills Co., 20 Ga. App. 828 (93 S. E. 530). Thus, since the general provision of the act adopting all consistent rules governing pleading and practice in the superior court does not confer upon the city court of Blakely the authority to enter a judgment of default, and since the act fails to confer otherwise such authority, no such authority exists, and the entry of default was altogether illegal. The question, therefore, is, just as in the Daniel case: Was the case in default by operation of law, and without the aid of any such unauthorized entry? The act'does not require, as was the case in Dodson Printers’ Supply Co. v. Harris, supra, that a defense shall be filed at the first term. See also Morgan v. Prior, 110 Ga. 791 (36 S. E. 75). It can not be presumed, as was the basis of the ruling in Beacham v. Kea, supra, that the rules of court must have required the filing of a defense at the first term, since in the instant ease the certified bill of exceptions expressly recites that no such rule of court had ever been promulgated. It follows, therefore, that since there was no judgment bn the main cause hy default prior to the offering of the plea, and that since the judgment of default was unauthorized and illegal, and since neither the act creating the court nor any rule of court in any wise purports to limit the time in which a plea can be filed prior to judgment, the action of the trial jiidge in holding 'that the plea was offered too late was erroneous.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17383.
    COLLINS & GLENNVILLE RAILROAD CO. v. BEASLEY.
    1. In this action against a carrier to recover for damage to property, alleged to have been done in transit, the evidence authorized the inference that the damage was sustained én route, and from a cause for which the carrier was responsible.
    2. There was some evidence of what would have been the, value of the goods at the destination had they arrived in good condition, and of what was their value in their damaged condition.
    3. The amount of the verdict was not in excess of the damages proved by the evidence. The court did not err in refusing the defendant's motion for a new trial.
    Carriers, 10 C. J. p. 389, n. 94, 4; p. 390, n. 15.
    Evidence, 22 C. J. p. 183, n. 12; p. 184, n. 43; p. 187, n. 96 New, 10; 23 C. J. p. 57, n. 51; p. 59, n. 22.
    Trial, 38 Cyc. p. 1518, n. 69; p. 1521, n. 84, 85; p. 1838, n. 2.
    Decided December 20, 1926.
    Damages; from city court of Reidsville — Judge Lauier presiding. April 2, 1926.

      Lawton & Cunningham, for plaintiff in error.

      H. C. Beasley, contra.
   Bell, J.

This was an action by E. L. Beasley against Collins & Glennville Railroad Company, the initial carrier, for damage to a carload of sweet potatoes shipped by Beasley from Glennville, Georgia, to D. Canale & Company Inc., at Memphis, Tennessee. The petition alleged that the weight of the potatoes was 33,000 pounds, and that their value was $666.60; that when the potatoes arrived at destination they had been damaged by freezing; that they were sold for $202.40, just enough to pay the freight and brokerage charges, and therefore that the plaintiff received nothing from the shipment. The bill of lading specified that the vents of the car in which the potatoes were shipped were open at the time, but were to be closed in case of freezing temperature. The allegation was that the potatoes were damaged by the negligence of the railroad company in failing to close the vents as required by the bill of lading. The prayer was to recover $666.60. The jury found for the plaintiff $533.38. The defendant excepts to the refusal of its motion for a new trial.

The motion for a new trial contained only the usual general grounds and one special ground making a contention which had previously been made in a motion for nonsuit. Counsel for the plaintiff in error seek reversal of the judgment refusing a new trial upon only three grounds; to which we will refer in the opinion below:

The first contention of the plaintiff in error is that the evidence showed without dispute that the potatoes could not have been frozen in transit. Evidence was introduced to show that the potatoes were examined at the various points along the route several times during each day from the time of their departure from Glennville until their arrival at their destination and tender to the consignee, and that at no time during this period were they exposed to freezing temperature. However, G. W. Glass, of a firm of brokers in Memphis, who examined the potatoes upon their arrival at Memphis, testified: “I first saw the shipment on December 15th and examined it on that date, when practically all of the potatoes were frozen. The freezing was uniform throughout the car; the potatoes [were] frozen at the sides of the car and at the ends. I do not know whether they were frozen in transit or before they were shipped; however, 'they were frozen when they arrived in Memphis; . . when we examined them on arrival they were frozen. The vents were not closed on arrival, nor were the ventilator doors.” “If the vents had been closed it is not likely that the shipment would have been frozen when it reached Memphis.” “I have been in the produce business twenty-five years, handling sweet potatoes.” The plaintiff testified that the potatoes were delivered to the carrier at Glennville in good condition. The shipment was on the road about five days.

It will be seen from the above that the evidence was in conflict as to whether the potatoes were frozen while in the charge of the carrier. The jury were authorized to find against the carrier upon this issue, and also upon the issue as to whether the damage to the potatoes was due to the failure of the carrier to close the vents as required by the bill of lading.

Counsel contend that the verdict is unsupported because, as they insist, there was no evidence of what would have been the market value of the potatoes at destination had they arrived in good condition, nor of their market value in their actual damaged condition. The plaintiff testified that he had sold the potatoes to D. Ganale & Co. for $666.60, f. o. b. Glennville, Georgia, the consignee to pay freight and other charges. The consignee refused the potatoes because of their damaged condition, and they were resold in Memphis to the highest bidder, for $202.40. As a general rule, the selling price of an article, though relevant upon the question, is not, when standing alone, sufficient to establish market value. Watson v. Loughran, 112 Ga. 837 (3) (38 S. E. 82); Lott v. Banks, 21 Ga. App. 246 (4) (94 S. E. 322); Allen v. Harris, 113 Ga. 107 (4) (38 S. E. 322); So. Ry. Co. v. Williams, 113 Ga. 335 (1) (38 S. E. 744). The invoice price of the potatoes in question was shown by the plaintiff to be $666.60, f. o. b. Glennville. This fact, with the other facts in evidence, was sufficient to authorize the jury to determine the market value of the potatoes at Memphis at the termination of the shipment. This court will take judicial cognizance that sweet potatoes are a staple food product in this State, and the jury trying this case could have known the same without proof. The witness Glass, a resident of Memphis, who had been in the brokerage business for many years, testified that he had been handling potatoes in his business for 25 years. From this evidence and from what we also know of potatoes in this State, it may .be inferred that they are a'staple food product also in the city of Memphis. This does not mean, of course, that their value does not widely fluctuate; but the fact that a dealer in Memphis purchases a carload of potatoes at a certain price, f. o. b. Glenn-ville, Georgia, as the plaintiff testified was doné in this case, is some evidence of a market value in" Memphis, equal to the price promised, plus freight. Compare Atlantic Coast Line R. Co. v. Stovall Co., 30 Ga. App. 326 (5) (118 S. E. 62). Again, the witness Glass testified that if the potatoes had arrived in Memphis in good condition, the shipper could have gotten the invoice price less freight and expenses, leaving a balance of $464.20. This testimony did not necessarily refer to the shipper’s contract with the consignee, but might have been understood by the jury as indicating a general market value. The shipper had a contract, and there was no necessity for an opinion as to what he might have received for the potatoes from the consignee if they had arrived in good order. So much for the evidence as to what would have been the market value of the potatoes in Memphis in good condition. Now, as to whether there was proof of their market value at that place in their damaged- condition: The market value of a staple product in good condition at a given time and place is a circumstance to be considered in determining the market value of such commodity at the same time and place in bad condition. These potatoes were disposed of in a city where, as we have seen, there was a market for potatoes. Glass, the broker who represented the shipper, testified to having had twenty-five years in the handling, that is, the selling of potatoes. He further testified that practically all of the potatoes were frozen. He then sold the potatoes “to the highest bidder” for $202.40. We think there was ample evidence to show what would have been the value of the potatoes in good condition, and what was their value in bad condition. See, in this connection, Atlantic Coast Line R. Co. v. Harris, 1 Ga. App. 667 (57 S. E. 1030); Morrow Transfer Co. v. Robinson, 8 Ga. App. 409 (1) (69 S. E. 317); American Express Co. v. Dubois, 28 Ga. App. 274 (2) (111 S. E. 70); Harley Hardware Co. v. Lafond Co., 28 Ga. App. 584 (7) (112 S. E. 394); Rome R. Co. v. Sloan, 39 Ga. 635 (4); Kraft v. Rowland, 33 Ga. App. 806 (3) (128 S. E. 812); Strachan Co. v. Hazlip-Hood Co., 161 Ga. 480 (131 S. E. 283, 286).

A further contention which is made in behalf of the plaintiff in error is that, assuming the plaintiff’s right to recover, the verdict in his favor is excessive. It is pointed out that the verdict was just twenty per cent, less than the amount sued for and it is suggested that under any view of the evidence there is no justification for such a verdict. Counsel observe, that, while witnesses for the defendant testified that only about 20% of the potatoes were damaged, the jury, instead of finding a verdict of 20% of the amount sued for, “simply took off 20%.” The jury were not required to believe either of the defendant’s witnesses as to the percentage of the damage. It was in their province to accept the testimony of the plaintiff’s witness Glass to the effect that “practically all of the potatoes were frozen.” If they had further believed, from the testimony of Glass, that the market of the potatoes in good condition in Memphis would have been $666.60, less freight and expenses, they could have found for the plaintiff for an amount not exceeding $464.20, and the verdict as returned would have been excessive. But in seeking to arrive at a just conclusion upon disputed issues of fact, the jury may believe a part of the testimony of a witness or witnesses and reject other parts thereof. Sappington v. Bell, 115 Ga. 856 (42 S. E. 233); Reaves v. Columbus Co., 32 Ga. App. 140 (4) (122 S. E. 824). It was, therefore, legitimate for the jury, upon the point last mentioned, to believe the plaintiff Beasley to the effect that he had sold the potatoes to D. Canale & Company for $666.60, f. o. b. Glennville, Georgia, and from this testimony and the other facts and circumstances referred to in the preceding division of this opinion, to conclude that the difference between what would have been the market value of the potatoes in Memphis in good condition and what was their value in their damaged condition was the amount stated in the verdict rendered by them. We are unable to agree that the verdict is illegal for any of the reasons urged, and therefore hold that the court did not err in refusing a new trial.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    17392.
    CONE et al. v. GLIDDEN STORES COMPANY.
    1. In a suit in the municipal court of Atlanta, as in eases in justices’ courts (Ladd Lime & Stone Oo. v. Case, 34 Qa. App. 190' (1), 129 S. B. 6; Hines v. Malone, 25 Qa. App. 781 (1), 105 S. B. 37), it is necessary that the alleged cause of action, whether contained in the body of the summons or attached to the summons as an exhibit (So. Ry. Oo. v. Collins, 118 Ga. 411 (2), 45 S. E. 306), shall furnish to the defendant or defendants reasonable notice of the character of the plaintiff’s demand. The present action was subject to general demurrer for noncompliance with this rule. Thomas v. Forsyth Ohaim Oo., 119 Qa. 693 (46 S. E. 869) ; Hendrix v. Elliott, 2 Ga. App. 301 (58 S. E. 495) ; Maeon cG Birmingham Ry. Oo. v. Walton, 121 Ga. 275 (1) (48 S. E. 940); Jackson v. Menter Oo., 20 Qa. App. 666 (93 S. E. 255) ; Williams . v. George, 104 Qa. 599 (3) (30 S. E. 751); Powell v. Alford, 113 Qa. 979 (39 S. B. 449) ; Jackson v. Brothers cG Sisters of Promise, 2 Qa. App. 761 (59 S. B. 11) ; Qa. Southern &c. Ry. Oo. v. Oliver, 6 Qa. App. 308 (64 S. E. 1007) ; Hancock v. Allen, 29 Qa. App. 611 (2) (116 S. E. 321) ; Mayer v. So. Express Oo., 17 Qa. App. 744 (88 S. E. 403). No amendment having been offered, the question whether the suit is amendable is not involved in this case.
    2. Furthermore, the defendants having answered the suit in the manner provided for in sections 36 and 37 of the act creating the municipal court of Atlanta (Ga. L. 1913, p. 145), and such answer being sufficient in a case of this sort, to put the plaintiff upon proof, the judgment in the plaintiff’s favor was erroneous, because, as shown in the answer as made by the trial judge.to the certiorari, there was no evidence whatever to sustain it.
    3. “Where a garnishment is sued out pendente lite by the plaintiff and dissolved by the defendant, there can be no judgment rendered on the bond given to dissolve the garnishment until after judgment is rendered in the main action in favor of the plaintiff against the defendant therein. This judgment must be against the defendant alone, and not against him jointly with the surety on the bond.” Everett v. Westmoreland, 92 Qa. 670 (2) (19 S. E. 37). The judgment against the sureties upon the bond given by the defendants to dissolve the garnishment was illegal, because (if not also for other reasons) there had been no previous judgment in the plaintiff’s favor against the defendants in the main action. Simerly v. Brooks, 21 Qa. App. 169 (2) (93 S. E. 1017). With further reference to the garnishment proceedings in this case see Smith v. Kennedy, 125 Qa. 830 (2) (54 S. E. 731); Carpenter v. Bryson, 35 Qa. App. 622 (134 S. E. 180.) ; Civil Code, 1910, §§ 5280, 5281.
    4 Applying the above rulings, the superior court erred in not sustaining the certiorari.
    Decided December 20, 1926.
    Certiorari; from Eulton superior court — Judge Humphries. March 9, 1926.
    Courts, 15 C. J. p. 987, n. 61.
    Garnishment, 28 C. J. p. 538, n. 2, 6.

      Morris Macks, E. C. Peek Jr., for plaintiffs in error.

      Efurd & Phillips, contra.
   Bell, J.

The bill of exceptions in this case complains of a judgment of the superior court dismissing a certiorari. The Glidden Stores Company brought suit in the municipal court of Atlanta against Charles Cone Bealty Company, a corporation, and Charles Cone individually. Attached as an exhibit to the summons was the following alleged cause of action:

“Exhibit *A’.

The Glidden Stores Company

Jap-a-lac

Date — December 12th, 1924.

Chas. Cone Bealty Co. &

Chas. Cone.

June — 1924.

For material, $677.47.”

The defendants answered the suit by a general appearance made by their attorneys in conformity with sections 36 and 37 of the act creating the municipal court of Atlanta (Ga. L. 1913, p. 145). The trial court overruled the motion of the defendants, in the nature of a general demurrer, to dismiss the action. It appears that the plaintiff sued out a garnishment, which the defendants dissolved by a bond on which B. F. Davis and A. B. Tumlin were sureties. The court rendered the following judgment: “The within case coming on to be heard and due weight having been given the evidence, it is hereby considered, ordered, and adjudged, and is ordered and adjudged that the plaintiff, the Glidden Stores Co* recover from the defendant, Chas. Cone Bealty Co., and Chas. Cone and B. F. Davis and A. B. Tumlin securities on the bond to dissolve garnishment, the principal sum of $677.47 and cost of suit. This the 9th day of March, 1925.” The petition for certiorari alleged that “there was absolutely no legal proof or evidence to support said judgment, there being no proof submitted of the correctness of the alleged claim sued upon — neither as to charges nor as to delivery, nor as to credits for payments made, as your petitioner is advised and believes. And there certainly was no proof submitted to authorize or support a judgment against B. F. Davis and A. B. Tumlin.” These allegations were verified by the trial judge in his answer to the certiorari. The assignments of error in the record raised the questions decided in the headnotes. Under the rulings made therein, the superior court erred in not sustaining the certiorari.

Judgment reversed.

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


text:
    17394.
    ZURICH GENERAL ACCIDENT & LIABILITY INSURANCE COMPANY et al. v. LEE.
    1. Where one “contracts with an individual exercising an independent employment, for him to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor’s own methods and not subject to the employer’s control or orders except as to results to be obtained, the employer is not liable for the wrongful or negligent acts of such independent contractor or his servants.” Quinan v. Standard Fuel Co., 25 Ga. App. 47 (102 S. E. 543) ; Civil Code (1910), §§ 4414, 4415. The same rule is applicable under the provisions of the workmen’s compensation act. U. S. Fidelity é Guaranty Co. v. Corbett, 31 Ga. App. 7 (119 S. E. 921). While, under the Georgia statute and decisions, the test to be applied, in determining the relationship of the parties under the contract, lies in whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract, there have been foreign decisions suggesting that the fact that under the agreement the employer may at any time terminate the contract is one to be considered in determining whether or not, under such circumstances, the employee is an independent contractor or merely a servant, but the rule under those authorities appears to be established that such a right to terminate the undertaking could not in any event be of itself sufficient to establish the fact that the employee is a mere servant and not an independent con- - tractor. 39 O. J. p. 1322, § 1525; 42 A. L. R. 616, III a.

    2. In the instant case it indisputably appears that the defendant, after discontinuing the operation of his sawmill upon -his own premises, turned over his machinery to another, under a contract whereby the other person was to use the defendant’s machinery, at his own cost and expense, in converting the defendant’s timber into lumber, receiving therefor a stated price per thousand feet of lumber. Under the agreement, it appears, the defendant was to advance and did advance to the person thus operating the mill sufficient funds for him to pay off the workmen employed by him in executing the contract, such advances being charged against the compensation to be paid under the terms of the agreement, the defendant, however, not being ultimately responsible for any sum greater than the agreed price for sawing the timber. It indisputably appears that the second party to the agreement had exclusive control over the manner and method of executing the work, including the hiring, discharging, and paying of the help, and fixing their compensation, the net profit or loss accruing to such party being determined by the difference between the amount received for the sawing and the cost of executing the contract-, including the return of all such pay-roll advances. Held:

      Master and Servant, 39 O. J. p. 1315, n. 1; p. 1318, n. 7, 10; p. 1319, n. 40; p. 1321, n. 68; p. 1322, n. 71, 83, 86; p. 1323, n. 88; p. 1334, n. 11.
    Workmen’s Compensation Acts, O. J, p, 50, n. 62; p. 135, n. 41 New.

      {a) As to whether the relationship of subcontractor existed between the defendant and the second party to the contract, the evidence is extremely meager, the only testimony in any wise relating to that question being that the defendant testified he was under agreement to operate the mill and saw the timber. The most that the evidence on this line might seem to indicate is that the defendant had sold his lumber ahead; there is nothing to indicate that he had ever operated the sawmill for another. But, however this might be, the case is not maintained under the provisions of section 20 of the workmen’s compensation act relating to subcontractors, and there could in no event be a recovery in the present action against the defendant on that theory, since that section of the act specifically provides that “every claim for compensation under this section shall be in the first instance presented to and instituted against the immediate employer.”
    (6) The relationship between the defendant and the second party to the contract can not be adjudicated to be that of master and servant on the theory that the latter was to receive compensation for “piece work,” such not being the agreement. While it is true that the second party to the agreement -was to receive a stated gross sum per thousand feet of lumber sawed, such amount did not represent his compensation as wages in the way of “piece work,” since the timber was to be sawed at the expense of the second party, he to receive only such actual compensation as the net profits of the enterprise conducted by him and at his expense might show.
    (c) Under the agreement outlined, the fact that the defendant was to furnish to the other party his own machinery, with which the latter was to do the work, would not prevent the status of the latter person from being that of an independent contractor. Central Railroad v. Grant, 46 Ga. 418. Nor would the fact that he was to make the labor payroll advances, and was to be repaid out of the compensation which would become due the second party, operate to fix the status of the second party as that of a servant, it appearing that all the amounts thus advanced were to be fully repaid.
    3. Under the foregoing rulings, there was no relationship of master and servant existing between the claimant and the defendant, and under the ruling made in the Corbett case, supra, there could be no recovery under the claim as brought.
    Decided December 20, 1926.
    Appeal; from Wilkinson superior court — Judge Park. April 12, 1926.

      Brock, Sparks & Russell, for plaintiffs in error.

      Victor Davidson, contra.
   Jenkins, P. J.

W. Henry Lee filed a claim for compensation under the workmen’s compensation act, for injuries alleged to have been sustained in line of duty as an employee of W. T. Butler. He was awarded compensation by a commissioner, and this finding was sustained by the full commission, and by the superior court on appeal. The only question raised by the record is whether the relationship of master and servant existed between Butler and Lee. It appears, from the evidence, that Butler had previously been operating his own mill in sawing his own timber, but, finding it necessary to give his attention to his farming operations, he contracted with Bridges to take over the machinery and equipment and convert the timber into lumber, at a price of $7.50 per thousand feet. In the record there is nothing to indicate how long the contract was to run, or how much timber was to be converted into lumber. It indisputably appears from the record that Bridges was to hire and fix the compensation of, and had the exclusive right to discharge, all his labor; that he had complete authority and control as to the time, manner, and method of the work provided for by the contract. Butler was to make such advances to Bridges as might be necessary to meet Bridges’ pay-roll, the advances to be repaid out of the compensation provided by the contract for.Bridges. The evidence is clear that Butler simply . advanced Bridges the money, and that the hands employed by Bridges were directly paid by him out of such advances made to him. Such advances were all charged to Bridges, and he was -responsible for the full amount so advanced, whether he sawed sufficient lumber to cover the advances at the price agreed upon or not, Butler being responsible for and agreeing to pay only the contract price for the lumber sawed. The claimant was employed by. Bridges, and was working at the sawmill operated and controlled by Bridges under his contract at the time of the injury. The findings of the commissioner on the facts of the case were as follows: “The facts in this case are that W. Henry Lee was employed at a sawmill owned by W. T. Butler and operated by a Mr. Bridges. "While engaged in his work he received an injury to his hand, for which he asks compensation. The first part of February Mr. Butler, finding that he was more needed on the farm than at the sawmill, turned the mill over to Mr. Bridges and went to work on his farm. The terms of the contract were that Mr. Butler was to pay the hands for their services and pay Bridges seven dollars a thousand for the lumber he sawed. During the time of this contract the hands were paid by Mr. Butler, whether Bridges sawed a sufficient amount of lumber or not. Mr. Bridges had the right to discharge and employ his help at will. As a matter of fact, Mr. Bridges did employ Mr. Lee. Mr. Butler had protected his risk and thought it was to run for one year, the term of the contract. No request for payment of premium has been made to him, and the policy has not been cancelled. We find that the mill in question was the property of Butler brothers; that being unable to superintend the mill and attend the farm, they had put Mr. Bridges in charge. All of the product of the mill was turned over to Mr. Butler, and the manner of paying Bridges was by the piece, but Mr. Butler continued to pay the help, although he gave Bridges the right to handle the men as he saw fit. We do not believe that the claim that Bridges was an independent contractor has been sustained in this case, and that W. T. Butler is liable for this injury.”

On appeal to the superior court, the judge rendered the following judgment: “The within case of W. T. Butler and Zurich General Accident & Liability Insurance .Company against W. Iienry Lee, in Wilkinson superior court, was argued and submitted to me by counsel in said case, on April 8, 1936, during the April term, 1936, of said court, and by consent of said counsel I held up my decision until this date. The industrial commission of Georgia decided that W. Henry Lee, under the law and facts of said case, was entitled to compensation for the injury sustained by him. The said appeal was then made to said superior court as provided by law. The attorneys for 'the appellants in the argument of said case stated that the only question at issue was whether or not Bridges, who was operating the sawmill at the time Lee was injured, was an independent contractor or a subcontractor, under the law and evidence in said case. If Bridges was an independent contractor, the award of the industrial commission ought to be set aside. If Bridges was a subcontractor, or a servant of Butler, then the award ought to be sustained.

'“The evidence as set forth in the record shows that Butler owned the sawmill and the timber, and was under an agreement to operate the sawmill and furnish the timber. Bridges has no interest in'the sawmill or timber, and, as Butler desired to look after his farming business, employed Bridges to operate the sawmill and saw the trees into lumber, Butler stating in his evidence that he needed an assistant. Bridges was to receive for his labor in doing the work for Butler $7.50 per thousand feet for all lumber he sawed and stacked. Out of this amount he was to refund to Butler all amounts that Butler paid to the hands engaged in doing the work for Bridges. It will be seen from the testimony of Butler as set forth in the record, that Butler paid the laborers regardless whether Bridges sawed the lumber or not, and even if Bridges did not saw the amount of the lumber, Butler sent the hands the money. However, Bridges was to pay the hands out of the lumber that was sawed. See page 8 of the evidence reported in the record. If Butler had owned the sawmill outfit and had contracted with the laborers, and Butler was not under any obligation to see that they received their money, then Bridges would have been an independent contractor. In the case of Richmond &c. Const. Co. v. Richmond &c. R. Co., 68 Fed. 105 (34 L. R. A. 265), it is held that subcontractor, within the meaning of the Kentucky lien act, is one who contracts under and with the principal contractor. Therefore, in sawing the lumber that Butler was under contract to do, he was the principal contractor and Bridges was .his. subcontractor or employee or servant. The word servant, strictly speaking, is a person who by contract or by operation of law is for a limited time employed by another to render personal services to the employer. See Grubbs-Wiley Grocery Co., 96 Fed. 183. If all public officers in law are servants, then, under the facts of this case, Bridges was the servant of Butler to do certain work for the said Butler in assisting him to fulfill his contract in operating Butler’s sawmill that Butler could carry out his contract. Therefore, it is ordered that the award of the industrial commission be sustained, and a new trial is refused.”

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17397.
    Puckett v. Jones.
    Bills and Notes, 8 O. J. p. 496, n. 75, 76; p. 497, n. 92; p. 499, n. 1.
    Vendor and Purchaser, 39 Oye. p. 1579, n. 18; p. 1581, n. 33, 34; p. 1921, n. 7; p. 1925, n. 46; p. 1935, n. 36; p. 1937, n. 56; p. 1961, n. 39; p. 1964, n. 68.
   Jenkins, P. J.

In an action on purchase-money notes a vendee in possession under a bond obligating the vendor to make good and sufficient titles can not ordinarily be heard to defend by disputing the title of his vendor under which he holds possession, but - is relegated to his remedy under the bond. The exceptions to the application of this rule are in eases where the obligor is charged with fraud, or insolvency, or where such other facts are shown as would authorize equitable interference in lieu of carrying out the contract of sale. Black v. Walker, 98 Ga. 31 (26 S. E. 477); Powell on Actions for Land, 497. But this principle of estoppel does not apply where the purchaser does not hold possession of the bargained premises; and in a case where the purchaser was put into possession of only a part of the land under the bond for title, and was sued upon a promissory0note representing the unpaid purchase-money, the purchaser is permitted to set up as a defense that he “was not in possession of a part of the land, and that the vendor could not make good title thereto, and that, in consequence of the defect in the title of the vendor to a part of the land, the defendant was entitled to a reduction of the purchase price.” Riehle v. Bank of Bullochville, 158 Ga. 171 (123 S. E. 124).

2. In the instant case the defendant, having pleaded that she was not given possession of a portion of the land bargained for under the bond for title, to wit, lot No. 976, but that the same had previously been conveyed by the predecessor in title of the plaintiff to a named person, who had taken possession thereof and who remained in possession, that she had not been put in possession of the purchased mineral rights in lot of land No. 966, as bargained for under the bond for title, but that such rights had been previously granted by the predecessor in title of the plaintiff to a named person, who, for the purpose of extracting such minerals on that portion of the premises had gone into and remained in possession, and that her possession of the land bargained for in lots numbers 1037, 1038, 1121, five acres of lot number 1112, and lots numbers 977 and 1040, was but a qualified possession, subject to previous conveyances by the predecessor in title of the plaintiff of certain mineral rights thereon and certain easements for the exercise of such rights to named persons who were in actual possession of the premises in the manner and to the extent required in mining and removing the minerals granted in accordance with such previously granted easements, and having by amendment set out the value of all of lot No. 976, and of the mineral rights in lot No. 966, and the deficiency in value of the bargained premises by reason of such previously granted easements, she was entitled, upon making proof of these facts, to reduce the purchase price in accordance with the loss in value thus indicated.

3. With reference to lot number 1185, and the ten acres known as the “lime-kiln tract,” the defendant having merely pleaded that she was not put in possession of these portions of the premises, and that the same were occupied adversely to lier by named persons, but the nature and character of such adverse claims not being set forth, and it not appearing from the allegations thus made that the vendor could not be required to make a good title thereto as obligated by the bond, it follows that the pléa as it now stands,. or without further amendment, would be ineffective as to such portions of the deficiency pleaded, even had the proffered amendment setting up the insolvency of the vendor been allowed.

Decided December 20, 1926.

Rehearing denied January 24, 1927.

Complaint; from Bartow superior court — Judge Tarver. March 22, 1926.

William T. Townsend, for plaintiff in error.

John K. Davis, G. R. Aubrey, contra.

4. “He who takes with notice of an equity takes subject to that equity.” Civil Code (1910), § 4529. In the instant case the plaintiff holder of the promissory note having previously, as administrator, conveyed the land to the maker of the bond for title, froni whom he as an individual subsequently obtained the purchase-money notes, is charged with notice of such deficiences in title as existed when the land was previously held by him as administrator. Th% plaintiff, as purchaser of the note, has no better standing than the payee.

5. There was no error in striking paragraph 6 of the original answer, with reference to attorney’s fees, but, in accordance with the foregoing rulings, the court erred in striking the amended answer of the defendant, and in refusing to allow the amendment as to the insolvency of the vendor, which sought to establish an additional reason why the defense setting up the deficiency outlined in paragraph 2 of the syllabus should be allowed. The plea as amended a,nd the offered amendment set up a valid ground of defense, going toward a reduction of the amount due under the purchase-money note, on account of the deficiency set forth in paragraph 2 of the syllabus.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17398.
    Lee v. Newton.
    Decided December 20, 1926.
    Removal of Causes, 34 Cyc. p. 1250, n, 90; p. 1258, n. 15 New.
   Stephens, J.

The defendant in the trial court, being a resident of the State of Georgia, in which the suit was brought, had no right to remove the case to the United States court upon the ground of diversity of citizenship of the parties. Lee v. Wilmington Savings Bank, 29 Ga. App. 306 (114 S. E. 918). The defendant’s petition for removal was there- . fore properly denied.

Judgment affirmed.

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

Petition to remove cause; from Newton superior court — Judge Hutcheson. March 15, 1926.

Robert Lee, for plaintiff in error. Reuben M. Tuck, contra.