text:
    19074.
    WARM SPRINGS BANKING COMPANY v. RIEHLE.
    Decided February 9, 1929.

      N. F. Culpepper, B. A. McGraw, for plaintiff.

      J. B. Terrell, J. F. Hatchett, for defendant.
   Bell, J.

This case was before this court upon a previous occasion, when it was held that a verdict favorable to the defendant should have been set aside and a new trial granted on the motion of the plaintiff. 36 Ga. App. 470 (137 S. E. 642). A second trial resulted in a verdict for the plaintiff for $3000 principal, $1200 interest, and 10 per cent, attorney’s fees, less $1-500 found for the defendant as “offset on note for damage.” The court entered a judgment reducing the principal amount by deducting the “offset,” but did not reduce the $1200 for interest nor consider the “offset,” in fixing the recovery for attorney’s fees. The plaintiff and the defendant were both dissatisfied and each made a motion for a new trial. The motions came on for hearing on May 12, 1928, when the court overruled the plaintiff’s motion unconditionally as of that date, and passed an order on the defendant’s motion, providing that if the plaintiff would write off certain amounts of excess of interest and attorney’s fees, “the motion is hereby overruled,” but that “in case the plaintiff does not write off said above-named amounts within thirty days from this day, then . . a new trial . . is hereby granted.” Within less than thirty days, to wit, on May 31, the plaintiff tendered and the judge certified the instant bill of exceptions, in which the plaintiff assigned error upon the refusal of its own motion for a new trial and upon the grant of the defendant’s motion. The defendant has moved to dismiss the bill of exceptions upon the following grounds: (1) moot question; (2) case still pending in the court below; (3) no exception to a final judgment. To the motion to dismiss was attached a certificate by the clerk of the trial court, dated July 7, 1928, showing that the plaintiff had not at that time written off the amounts as directed in the judgment upon the defendant’s motion for a new trial.

We think the motion to dismiss the bill of exceptions should be sustained upon every ground. The judgment upon the defendant’s motion, under its own terms, did not become final until the expiration of 30 days, unless in the meantime the plaintiff had written off the sums as directed. It follows that a bill of exceptions complaining of such judgment, sued out on May 31, was premature, as not excepting to a final judgment.

If the plaintiff could have brought the case at all to this court under the circumstances, seemingly it could have done so only by filing exceptions pendente lite to the order refusing the plaintiff’s motion, and by following such exceptions pendente lite with a main bill of exceptions assigning error on the judgment upon the defendant’s motion, and presented within the statutory period after the expiration of the thirty days specified in the judgment as the time within which the plaintiff should write off such sums, the judgment upon the defendant’s motion being the judgment last ripe and thus the final judgment, and the judgment upon the plaintiff’s motion being but interlocutory. The case was still pending on the defendant’s motion for a new trial at the time the bill of exceptions was presented and certified. Insurance Co. of North America v. Folds, 35 Ga. App. 720 (1) (135 S. E. 107); Smith v. Bugg, 35 Ga. App. 317 (133 S. E. 49); Massengale v. Colonial Hill Co., 34 Ga. App. 807 (131 S. E. 299); Farmers & Merchants Bank v. Cochran, 37 Ga. App. 33 (138 S. E. 856); Georgia Ry. & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300); Mitchell v. Tomlin, 64 Ga. 368 (1); Williams v. Jones, 69 Ga. 277 (3); McLendon v. W. & A. Railroad, 85 Ga. 129 (11 S. E. 580); Kelley v. Moore, 125 Ga. 382 (1) (51 S. E. 118).

Moreover, even assuming that the bill of exceptions may be considered as excepting to a final judgment, the questions therein presented are moot and will not be decided by this court. Nobody was satisfied with the judgment as originally rendered, not even the judge himself, he having set it aside on motion of one of the parties. Why should this court object? The plaintiff wanted a new trial and got it, although it was granted at the request of the other party. Under the facts as they appear in the record, it is immaterial that the grant was thus obtained indirectly.

The complaint against the judgment refusing a new trial to the plaintiff necessarily fails, for the judgment was subsequently struck down or undermined by the grant of the new trial to the defendant. The judge could not both grant and refuse a new trial in the same case. If we should examine the grounds of the plaintiff’s motion and determine that error was shown, we could not reverse the judgment based thereon, because, as just stated, such judgment has already been set aside by the judge himself, by his judgment on the other motion, and by the non-action of the plaintiff on the condition of the latter judgment. If the plaintiff had complied with such condition, the result would have been that both motions were refused. Whether in that case the plaintiff could have excepted or should have been held to have acquiesced is not a question for decision under the instant record.

We can not retain the bill for the purpose of giving a direction looking toward a final disposition of the case favorable to the plaintiff, for a new trial must result and the-evidence and the rulings of the court may not be the same upon another trial. We say “must result,” for the plaintiff is not seeking to restore the judgment as based upon the verdict rendered, but is asking a new trial. The sole objection is, not that the new trial should not' have been granted, but that it was granted upon the wrong motion. Of course, this court could not order a final judgment in favor of the plaintiff for the amount sued for. No such judgment has ever been rendered, and the judgment that was rendered has been set aside. The parties are back where they started, and this court could not give such direction as would forestall another trial and result in a full recovery for the plaintiff. Any instructions from this court to that end would be the equivalent, not of substituting one judgment for another, but of making a judgment where none exists,— all judgments since the perfection of the pleadings having been set at naught, and the case standing for another hearing de novo.

In Parker v. Dorsett, 70 Ga. 727, the plaintiff sued for $500, and the jury found for the plaintiff $1 and costs. Both sidesjnade separate motions for a new trial. That of the plaintiff was granted; that of the defendant was refused, and the defendant excepted, assigning error on both rulings. The Supreme Court held: “The case is prematurely here. Where a new trial was granted, this court will not review the decision of the court below because he did not grant it on grounds which counsel for one side deemed important.” In Central of Georgia Ry. Co. v. Murphey, 113 Ga. 514 (3) (38 S. E. 970, 53 L. R A. 720), was the following ruling: “Where both the parties to a case move for a new trial, the granting of either motion leaves the case pending in the lower court; and while it so remains, a judgment overruling the other motion can not be lawfully brought to the Supreme Court for review.” These cases are controlling of the case before us.

Writ of error dismissed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    18750.
    Lee v. Jones.
   Stephens, J.

1. Where, in a suit to recover an alleged balance due as salary earned by the plaintiff as a clerk in the defendant’s store, there was an issue of fact as to whether, during a certain period of time, it was agreed between the plaintiff and the defendant that the plaintiff’s salary should be reduced to a certain amount, the proffered testimony of a witness who had been a clerk in the defendant’s store, that in the period when it was claimed by the defendant that the plaintiff’s salary was reduced it was generally known and discussed that salaries everywhere had been reduced, was properly rejected, since this testimony was immaterial and irrelevant, and it did not appear that this general knowledge or discussion was known to the plaintiff.

2. In a suit to recover an amount alleged to be due the plaintiff for salary as a clerk in the defendant’s store, where, after a verdict had been rendered for the plaintiff, the defendant, both in his motion for a new trial and in the brief filed by his counsel in this court, conceded, as expressed in the language of the brief, that “the real difference between the parties is whether or not the defendant in error worked at the rate of $100 per month [during a certain period], or whether her salary was reduced to $80 per month for such period as contended by the plaintiff in error,” and “there was practically no other difference between the parties, as an error in the amount of one side was offset by an error on the other,” and where the plaintiff in her testimony denied that her salary was reduced,’ but testified that she continued to work during the period referred to for a salary of $100 per month, a verdict for the plaintiff for this difference of $20 a month for a period amounting to about 43 months would have been authorized. The jury having found for the plaintiff in an amount (namely $530.72 and accrued interest in the amount of $111.45) which is less than the jury would have been authorized to find under the plaintiff’s evidence, the defendant can not complain. Ellis v. United States Fertilizer Co., 64 Ga. 571; Mullins v. Murphy, 69 Ga. 754; Hawley Down Draft Furnace Co. v. Van Winkle Gin & Machine Works, 4 Ga. App. 85 (60 S. E. 1008).

Decided February 20, 1929.

C. E. Sutton, for plaintiff in error. Earle Norman, contra.

Judgment affirmed.

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


text:
    18899.
    INFORMATION BUYING COMPANY v. MORGAN.
    Decided February '20, 1929.

      Jaclcson & Moore, for plaintiff. D. E. Johnston, for defendant.
   Stephens, J.

Information Buying Company, as transferee of Salary Investment Company, brought suit in the municipal court of Atlanta against II. A. Morgan, alleging: that the defendant on a certain date by a written assignment transferred his earned salary for a particular period to Salary Investment Company, which transferred this assignment to the plaintiff, that the defendant collected from his creditor the salary which he had transferred to Salary Investment Company and appropriated it to his own use, that this act by the defendant was “fraudulent” and “defrauded” the plaintiff, to its damage, etc. The petition was dismissed on demurrer upon the ground that it appeared from the petition that the transfer of the salary assignment by the assignee, Salary Investment Company, to the plaintiff, Information Buying Company, was a transfer or an assignment of a cause of action originating in and arising ont of fraud, and was therefore not assignable. This judgment of the trial judge sustaining the demurrer was affirmed by the appellate division of the municipal court, one of the judges therein, the Hon. A. L. Etheridge, dissenting. The judge of the superior court refused to sanction a petition for certiorari presented by the plaintiff, excepting to this judgment of the appellate division. To the refusal to sanction the petition for certiorari the plaintiff excepted.

Without undertaking to reconcile Covington v. Rosenbusch, 148 Ga. 459 (97 S. E. 78), in which it was held that the collection and appropriation to his own use of salary or wages by the assignor thereof under a salary assignment is “a wilful and malicious injury to property,” with Blocker v. Boswell, 109 Ga. 330 (34 S. E. 389), where it was held that a conversion of personal property which is ’ a basis of an action for trover is not an injury or damage to personal property in the sense of that clause of the constitution of this State conferring upon justices of the peace jurisdiction in cases of “injuries or damages to personal property,” the right of the assignee of a salary assignment to recover of the assignor thereof for an interference by the assignor in collecting the salary and appropriating it to his own use, whether this right arises ex contractu or ex delicto, involves a right of property. Although the assignor’s act in collecting the salary which he has assigned, and in converting it to his own use, may be a fraud upon the assignee, the assignee’s right to recover of the assignor for damage arising out of such conduct is not a right arising out of fraud on the assignee. It is a right to recover, not for an injury resulting from fraud alone, but for an injury to the assignee’s property right in the fund assigned. The assignee’s right to recover for such an injury is not even limited to an action ex delicto. He may recover in an action ex contractu as for money had and received. Atlanta Finance Co. v. Lunsford, 33 Ga. App. 787 (134 S. E. 813); Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (63 S. E. 370).

The assignee’s right as against the assignor, to recover for damage sustained by the assignor’s collecting the salary assigned and converting it to his own use, not being a right based upon fraud by the assignor to the assignee, is not unassignable under § 3655 of the Civil Code of 1910, which provides that “a right of action is no,t assignable if it does not involve, directly or indirectly, a right. of property; henee a right of action for personal torts or for injuries arising from fraud to the assignor can not be assigned.” Being a right involving “a right of property,” which is enforceable not only by an action ex delicto, but possibly by an action ex contractu, it is under the authority of § 3655 of the Civil Code of 1910, and Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 A. L. R. 124), assignable by the assignee.

Therefore the right of action vested in Salary Investment Company, the assignee of 'the salary assigned under a written salary assignment executed by EL A. Morgan as the assignor, to recover against EL A. Morgan, whether in an action ex delicto or in one ex contractu, for damages arising out of his act in collecting the salary and converting it to his own use, was assignable by Salary Investment Company; and therefore its assignee, Information Buying Company, transferee, had the right to maintain the suit. The judge of the municipal court erred in sustaining the demurrer to the plaintiff’s petition, and the judge of the superior court erred in not sanctioning the plaintiff’s petition for certiorari, excepting to the judgment of the appellate division of the municipal court which affirmed the judgment sustaining the demurrer.

Judgment reversed.

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


text:
    18985.
    Cox et al. v. Staten et al.

   Stephens, J.

1. Where a judgment de bonis testatoris was rendered in a suit against executors who had failed to plead a want of assets, it was conclusive that at the time of the rendition of the judgment they had assets of the estate sufficient to pay the debt upon which the judgment was rendered, and where assets belonging to the estate could not after-wards be found in their hands to satisfy the judgment, it was conclusive as against the plaintiff in execution that the executors had committed a devastavit, unless the executors could rebut this conclusion by showing otherwise. Where the executors, more than three months after the rendition of the judgment de bonis testatoris, brought a petition in equity to marshal the assets of the estate, and turned over to a receiver appointed by the court of equity in response to this petition all the assets of the estate then in their hands, this was not sufficient to rebut the presumption that at the time of the rendition of the judgment de bonis testatoris the executors had in their hands sufficient assets of the estate to pay the debt upon which the judgment was based, and that before the assets were turned over to the receiver the executors had not committed a devastavit. Gibson v. Robinson, 90 Ga. 756 (2) (16 S. E. 969, 35 Am. St. R. 250) ; Whiddon v. Williams, 98 Ga. 310 (24 S. E. 437) ; Porter v. Rountree, 111 Ga. 369 (36 S. E. 761).

Decided February 20, 1929.

Taylor & Spurlin, Titus & Détele, for plaintiffs in error.

O. H. Dukes, contra.

2. Where a creditor of the estate consented to marshaling the assets of the estate by a court of equity and to turning the assets over to £? receiver appointed by the court, to be administered, the creditor thereby consented merely to a change in the method of the administration of the estate, and did not thereby waive any right or become estopped from asserting any right against the executors in their personal capacity, growing out of their conduct in the administration of the estate. Whiddon v. Williams, supra.

3. In a suit by creditors of an estate who had obtained a judgment de bonis testatoris against the executors, to obtain a judgment de bonis propriis against them, a plea alleging that the plaintiffs were estopped from obtaining a personal judgment against the executors by reason of the fact that, with the consent of the plaintiffs, they had turned over the assets of the estate to the receiver appointed by a court of equity, to be there administered, set up no defense and should have been stricken on demurrer.

4. The title to the judgment de bonis testatoris and the execution issued thereon, although in the names of the plaintiffs as executors of a named estate, or will, was vested in them jointly, and the designation . of them as executors of the named estate or will was but descriptio persons, and the transfer of this judgment by one of the plaintiffs, purporting to act in her representative capacity, to herself in her individual capacity, without a consideration, was a mere transfer from herself to herself, and therefore a nullity. The interest of the other joint owner was not divested, and both have joint title to the judgment and execution.

5. The court erred in not sustaining the plaintiff’s demurrer to the defendant’s plea of estoppel, and, the verdict found for the defendant being without evidence to support it, the judge erred in not granting a new trial. Judgment reversed.

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


text:
    18988.
    Powell v. Harris et al.

   Stephens, J.

1. Where a deed of conveyance describes the land conveyed as “forty-five (45) acres of land off of the southwest corner of lot of land No. 202, lying and being in the 11th district of [Terrell] county, with three (3) acres in the southwest corner of said lot of land, excepted as church, and school privileges, so long as the same is used, as such,” tlie “three (3) acres in the southwest corner of said lot of land” (referring to “lot of land No. 202”) is necessarily a part of the “forty-five (45) acres of land off of the southwest corner of lot of land No. 202.” The title passes to the entire forty-five acres, in which are included the three acres, with a reservation from the operation of the deed of the use of the three acres for church and school purposes.

2. In the absence of a special agreement otherwise, any buildings placed upon the land of another, although by a person entitled to the use of the land, become part of the realty, and the title to the buildings becomes vested in the owner of the land.

3. A bona fide purchaser of land who, by the terms of the deed, acquires title to the land subject only to the right of another to the mere use of the land for church and school purposes, acquires a title unencumbered with the additional reservation that the person entitled to 'the use of the land is also entitled to the absolute ownership of all buildings on the land, with a right to remove the buildings, where the purchaser has no notice, either "actual or constructive, of the existence of this additional reservation.

4. In a suit by the grantee in such a deed, to recover damages for an alleged trespass upon the land, against persons who, it was alleged, entered upon the land and removed the schoolhouse therefrom, it was error to admit in evidence, over objection interposed by the plaintiff, a deed the grantor in which does not appear from the evidence to have been in any way connected with the title to the land, derived either from the plaintiff or from a predecessor in title to the plaintiff, and whose grantees were the trustees of a named church and were persons other than the defendants, and which deed conveyed. to the grantees therein the right to the use of the land for church and school purposes, where the objection urged to the admission of the deed was that it gave “no authority to the [defendants] to enter upon the land and remove any property” therefrom, “they [meaning the defendants] having no connection with the title in question,” it not appearing that there was any evidence otherwise connecting the defendants with the grantees in this deed and connecting the grantor therein with a title derived either from the plaintiff or from the plaintiff’s predecessor in title.

5. In a suit by the'grantee under the deed conveying the forty-five acres, to recover damages for an alleged trespass upon the land, against persons who, it was alleged, entered upon the land and removed a schoolhouse therefrom, where it appeared from uncontradicted evidence ■ that only one of the defendants, namely J. O. Whaley, had entered upon the premises and removed the schoolhouse, that he had bought the schoolhouse from the board of education of the county, which included the other defendants, and that these other defendants had nothing to do with the transaction except to sell the schoolhouse to J. C. Whaley, the court properly directed a verdict as to all the defendants except J. C. Whaley.

6. Under the ruling here made, the plaintiff had title to the three acres of land and the schoolhouse which was located thereon, and therefore was entitled to recover damages for a trespass on tlie property. Ault v. Meager, 112 Ga. 148 (37 S. E. 185). There being evidence from which the jury could infer the amount of damages, sustained by the plaintiff as a result of the alleged trespass by J. C. Whaley in removing the sehoolhouse from the land, the evidence was sufficient to have authorized a verdict for the plaintiff against J. C. Whaley.

Decided February 20, 1929.

Rehearing denied March 2, 1929.

H. A. Wilkinson, for plaintiff. R. R. Jones, for defendants.

7. The court erred in admitting in evidence the deed referred to in paragraph 4 above, and in thereafter directing a verdict for J. O. Whaley.

Judgment reversed as to the defendant J. O. Whaley; affirmed as to the other defendants.

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


author: Bell, J.

text:
    19004.
    TALLEY v. COMMERCIAL CREDIT COMPANY OF GEORGIA.
    Decided February 20, 1929.

      W. H. Terrell, for plaintiff in error. William T. Bean, B. T. Ltimbert, contra.
   Bell, J.

H. W. Talley bought an automobile from WillysOverland Inc., trading in another car at $400 and paying down in cash $150. After thus obtaining a credit of $550, he agreed to pay remainder of $1011.50 in 12 monthly installments of $84.30 each, making in all $1561.50 as the gross sum paid and to be paid for the automobile. He executed with the seller a written contract by the terms of which the title was reserved in the seller until the deferred installments were fully paid. The seller, Willys-Overland Inc., transferred this contract to Commercial Credit Company of Georgia, which company, in the course of time, brought in the municipal court of Atlanta an action of trover against Talley for the recovery of the automobile, alleging a balance due of $263.74. The defendant filed a plea in which he alleged that the property was sold to him on the basis of a cash price of $1400, and that after receiving credit of $550 he was due on the principal amount of the purchase-money only $850; and that the seller in taking the contract for a balance of $1011.50 exacted interest to the amount of $161.50, which was in excess of the legal rate in a sum specified. The plea further alleged that the plaintiff had more than paid the full amount of the principal and lawful interest, and prayed to recover the difference. The trial judge found for the plaintiff $159.25, which was $104.49 less than the sum sued for. The plaintiff was dissatisfied, and after unsuccessfully moving for a new trial, appealed to the appellate division. Upon a hearing before that tribunal final judgment was rendered in favor of the plaintiff for $263.74. The defendant carried the case by certiorari to the superior court; and the certiorari having been dismissed, he excepted.

The original contract between Talley, the buyer, and WillysOverland Inc., the seller, recited an agreement between the parties to sell and to buy at the gross price of $1561.50, with a credit of $550, and a balance due of $1011.50 payable in 12 monthly installments as above stated. The defendant testified as follows:

“The note and contract sued on in this case was signed by me in the office of Mr. White of the Willys-Overland Co., on North Avenue. The first time I came in contact with the Commerical Credit Company was when I got the first notice of the first payment being due. I did not know who had bought the note. Commercial Credit Company rendered me no service on this automobile whatever. They issued a policy which is a joint policy. It was issued through the Home Insurance Company. They instructed it issued to me and charged the premium to me. On this note there was a balance of $850, and $20 insurance which was transferred to the Commercial Credit Company. They charged me $140 interest on the $850 balance. When I bought the car I paid $150 cash and was allowed $400 on a car I traded in, making the first payment $550, leaving a balance of $850 payable in 12 monthly installments, 30 days apart, $84.30. I have paid to the present notes aggregating $758.70. There was a note of $102.35 paid by Mrs. Lloyd, also insurance in the amount of $141.96, making in all $1002.19 which I have paid to date, which, subtracted from $10.50, leaves $47.89, which is the amount I am due the Commercial Credit Company. They have added $161.50 interest to the original note because there was no carriage, and the $14 was for something else, I don’t know what. The $161.50 was made up of $20 insurance, and the balance was interest. They overcharged me in interest $107.50. I don’t know anything about carrying charges being added to the note. They never hauled me anywhere.”

J. B. White, sworn for the plaintiff, testified as follows: “I was once with the Willys-Overland Company, and witnessed the contract and note involved in this case. Can’t say that I wrote up the contract. There are different prices in automobiles when bought for cash and when bought on credit. I can’t say how the figures on the back of the contract were arrived at, because it has been a year, and I don’t remember. We have total carrying charges, and in this case the amount was $161.50. I don’t know what portion of it represents the interest.”

In E. Tris Napier Co. v. Trawick, 164 Ga. 781, 782 (139 S. E. 552), the Supreme Court held: “If a vendor and vendee agree upon a cash price of property which is the subject-matter of the sale, but the sale itself is not for cash but is distinctly on a credit until a particular time in the future, the transaction will not be rendered usurious because the vendor in order to make a time price on the property adds to the cash price another sum and includes the total amount thus arrived at in a promissory note which the purchaser gives, securing the same by a mortgage on realty. The law recognizes the right of a seller to make a difference in his cash price and his time price for his property; and thougH in a given instance this difference may exceed eight per cent., the law as to usury is not applicable.” It was further said, however, that, where property is sold at a cash price and time is given by the vendor to the purchaser on a portion of the purchase-money, and a greater rate of interest than that allowed by law is charged on such deferred payments, the contract is usurious. In that case, the facts of which were similar to those of the case now under consideration, it was held that there was an issue of fact as to whether the principal and interest included in the deferred payments represented the agreed price of the property, or whether they included a flat sum as the agreed principal, upon which interest should be charged. According to the recitals of the contract in the present case, the parties agreed upon a time or credit price, and there was no usury charged. The truth of the transaction, however, was open to inquiry, because there is no “contrivance by which usury can be legalized, if it appears that the purpose of the scheme was to exact a larger profit for the use of money” than that allowed by law. Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (132 S. E. 221); Flood v. Empire Investment Co., 35 Ga. App. 266 (3) (133 S. E. 60).

In Rushing v. Worsham, 102 Ga. 825, 829 (30 S. E. 541), the Supreme Court said: “In transactions of this character, it is the duty of the court to look, not at the form and words, but at the substance of the transaction; and as on the one hand it should not pay attention to the words of the transaction or the manner in which it was negotiated, if the substance of it went to defeat the statute against usury, so on the other hand it ought not to rely upon the words, or form of the transaction, if in substance such transaction was legal. [Citation.] If it should appear that the negotiations contemplated a cash price, the payment of which was simply to be deferred in consideration of the computation of interest thereon, then the taking or contracting to take a greater rate of interest than that allowed by the statute would be unlawful.” While an intent to charge or exact usury will not be presumed, and the burden of proving usury rests upon the party pleading it (Equitable Mortgage Co. v. Watson, 116 Ga. 679 (2), 683, 43 S. E. 49; Harvard v. Davis, 145 Ga. 580 (4), 89 S. E. 740), the defendant’s testimony in the present case at least presented an issue of fact as to whether the automobile was sold on the basis of a credit price of $1561.50, with no charge as interest, or at a cash price of $1400, with interest added at an unlawful and exeessive rate; and it therefore can not be said as a matter of law that the plaintiff was entitled to recover more than the amount awarded in the judgment of the trial judge. It-follows that the appellate division erred in rendering final judgment in favor of the plaintiff for the larger sum, which approximated the amount sued for. While it would not have been error to grant a new trial upon the discretionary grounds, it was erroneous to render such final judgment in the plaintiff’s favor. The superior court erred in not sustaining the certiorari. See in this connection, Woodbury v. Atlanta Denial Supply Co., 36 Ga. App. 548 (7) (137 S. E. 302).

Judgment reversed.

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


text:
    19022.
    Charin v. Cox.
   Stephens, J.

1. Where personal property is delivered to another under an agreement that he is to pay cash therefor, and where the cash payment is made by a cheek, which the person receiving believes to be good, but which afterwards proves to be worthless, no contract of sale ai'ises, and no title to the property passes. Civil Code (1910), § 4314; Sims v. Bolton, 138 Ga. 73 (74 S. E. 770) ; Kinard v. First National Bank, 125 Ga. 228 (53 S. E. 1018, 114 Am. St. R. 201); Stewart Paper Mfg. Co. v. Rau, 92 Ga. 511 (17 S. E. 748); Bowen v. DeLoach, 13 Ga. App. 458 (79. S. E. 371) ; Benjamin on Sales, § 975; Mechem on Sales, § 545. Decisions such as in Mashburn v. Dannenberg, 117 Ga. 567 (4) (44 S. E. 97), which hold that a vendee under a contract of sale induced by fraud acquires title to the property unless the seller elects to rescind the contract, are distinguishable, in that there a contract of sale, although voidable, was executed, whereas here, no contract of sale ever arose.

2. Where the person to whom the property is delivered is given, by the person from whom he received it, only its mere possession, and is given no indicia of the right to sell or dispose of the property, which, “according to the custom of trade or the common understanding of the world,” usually accompanies the authority to sell or dispose of property, he can not by a sale to an innocent purchaser divest the true owner’s title. Civil Code (1910), § 4119; Harris Loan Co. v. Elliott & Hatch Co., 110 Ga. 302 (3) (34 S. E. 1003) ; Singer Sewing Machine Co. v. Wardlaw, 29 Ga. App. 626 (116 S. E. 207).

3. This being a suit in trover for a diamond ring, and the only evidence authorizing an inference that the plaintiff’s admitted title to the ring had become divested being that the defendant purchased the ring from-a person who had obtained it from the plaintiff in the manner indicated in paragraph 1 above, it appears without dispute that the plaintiff never parted with the title to the ring and was not guilty of laches, and that the person who acquired the ring from the plaintiff had no such indicia of the right to sell or dispose of it as would permit him to pass title thereto to a bona fide purchaser for value or would estop the plaintiff from asserting his title against such bona fide purchaser for value, the verdict found for the plaintiff, in an amount representing the undisputed value of the ring, was as a matter of law demanded.

Decided February 20, 1929.

Rehearing denied March 2, 1929.

Hendrix & Buchanan, for plaintiff.

B. E. Johnston, for defendant.

4. Since the evidence demanded the inference that the title to the ring was in the plaintiff, the admission of evidence which tended to establish that the person who obtained the ring from the plaintiff was guilty of a criminal act in so doing and had been indicted therefor under a charge of larceny and had pleaded guilty to the charge, was, if irrelevant or otherwise inadmissible, harmless to the defendant.

5. The verdict rendered for the plaintiff in the municipal court of Atlanta, and afterwards affirmed by the appellate division of that court, was demanded as a matter of law, and no error prejudicial to the defendant was committed. The judge of the superior court therefore erred in sustaining the certiorari sued out by the defendant.

Judgment reversed.

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


text:
    19073.
    Parckerson v. Brooks.
   Stephens, J.

1. Proof that a servant died at the bottom of an old well into which he had been sent by the master who had employed him to work in the well, even assuming that the servant died from the effects of a poisonous natural gas in the well, that the well was an old well in which water had not been struck and was likely to be infected with poisonous natural gases, and that about a year beforehand a person while working in the well had become unconscious and had exhibited symptoms which indicated that he was suffering from the effects of poisonous gas in the well, all of which was known to the master, was not sufficient to authorize an inference that the servant, who was an experienced well-digger, did not, when he entered the well, know of the dangerous character of the well, or that, if he did not know it, he had not equal means with the master of knowing such fact, or that, by the exercise of ordinary care, he could not have known it.

2. In a suit by the wife of the servant against the master to recover for the homicide of her husband, alleged to have been due to the negligence of the master in sending the husband into the old -well when the master knew or in the exercise of due care should have known that the well was infected with natural gas, from the effects of which the plaintiff’s husband died, where the undisputed evidence adduced upon the trial was as indicated above, the court did not err in directing a verdict for the defendant.

Decided Febbuaby 20, 1929.

John D. & E. S. Taylor, Grahdm Wright, for plaintiff.

Porter & Mebane, for defendant.

Judgment affirmed.

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


text:
    17723.
    ATLANTIC COAST LINE RAILROAD CO. v. LONG COUNTY et al.

    Decided February 21, 1929.

      McDcmiel & Neely, Lawrence & Abrahams, Edwin A. Cohen, for plaintiff in error.
   Bm.1, J.

The State tax for the year 1924 was 5 mills. The tax levy ordered by the. proper authorities of Long county for that year included the following items: 2. To pay sheriff’s, jailer’s or other officers’ fees that they may be legally entitled to out of the county, 2-1/2 mills. 3. To pay the expense of the county for bailiffs at court, nonresident witnesses in criminal cases, fuel, servant hire, stationery, and the like, 1/2 mill. 4. To pay jurors a per diem compensation, 1' milL 7. For sanitation purposes, including tick eradication in the county, 3 mills. 8. To pay any other lawful charge against the county, such as interest on county warrants of said county, incidentals and the like, not hereinbefore named, 1-1/4 mills.

The Atlantic Coast Line Railroad Company, a taxpayer, paid a part of the tax called for by this levy, but refused to pay the remainder. An execution was then issued by tbe comptroller-general in behalf of the county for such remainder; and against a levy of this execution upon its property the railroad company interposed an affidavit of illegality. The judgment of the superior court upon the issue thus formed was in favor of the county, and the railroad company excepted.

It was contended in the affidavit of illegality that the above items of the tax levy exceeded in the aggregate the amount which the county was authorized to levy, and also that item 7, “For sanitation purposes, including tick eradication in the county, 3 mills,” was a tax for two purposes and was illegal, in that it failed to specify the per cent, levied for each purpose.

It appearing that in items 2, 3, 4, and 7 the county levied a tax for current expenses in the aggregate of 7 mills, and that in item 8 there was levied an additional 1-1/4 mills to pay current expenses and accumulated debts (interest on county warrants), so that the total levy to pay current expenses and accumulated debts amounted to 8-1/4 mills, and such levy being in excess of 150 per cent, of the State tax, the principal question for decision was whether a county may levy more than 150 per cent, of the State tax for the purpose of paying current expenses and accumulated debts.

This question (with others) was certified to the Supreme Court, but the Justices, being evenly divided as to the proper answer to the particular question, returned the case without instruction upon it. Atlantic Coast Line R. Co. v. Long County, 167 Ga. 210 (144 S. E. 783). In these circumstances, we will proceed, as best we can, to a proper solution of the case, taking aid from such prior adjudications as we think pertinent. In Wright v. Southern Ry. Co., 146 Ga. 581 (91 S. E. 681), the Supreme Court ruled: “County authorities may legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, without any reference to a recommendation by the grand jury. If 100 per cent, of the State tax be not sufficient to pay accumulated debts and current expenses of the county, the authorities have power to raise a tax for county purposes over and above the tax of 100 per cent, of the State tax, not to exceed 50 per cent, of the State tax for the year it is levied, ‘provided two-thirds of the grand jury recommend such tax’.” The same rulings were made in Southern Ry. Co. v. Wright, 154 Ga. 334 (114 S. E. 359), and in Southwestern R. Co. v. Wright, 156 Ga. 1 (118 S. E. 552).

Again, in Central of Georgia Ry. Co. v. Wright, 156 Ga. 13 (118 S. E. 709), the Supreme Court, in reply to certified questions, ruled as follows: “1. Under the Civil Code (1910), § 507, the proper county authorities can levy a tax of 100 per cent, of the State tax to pay current expenses of the county, but a levy to pay both accumulated debts and current expenses or a levy for either of these purposes must not exceed 100 per cent, of the State tax. 2. The tax authorized by the above section is in addition to that provided in the Civil Code (1910), § 508.”

It would seem to follow from these decisions that a county ordinarily can not in any given year levy more than 150 per cent, of the State tax, even for the purpose of paying both current expenses and accumulated debts. See further, in this connection, Atlantic Coast Line R. Co. v. Grady County, 32 Ga. App. 261 (122 S. E. 816); Central of Georgia Ry. Co. v. Wright, 33 Ga. App. 96 (125 S. E. 520); Wright v. Central of Georgia Ry. Co., 36 Ga. App. 382 (137 S. E. 93), affirmed in 165 Ga. 623 (142 S. E. 288) ; Central of Georgia Ry. Co. v. Wright, 36 Ga. App. 386 (137 S. E. 95), affirmed in 165 Ga. 631 (142 S. E. 292); Southern Ry. Co. v. Wright, 36 Ga. App. 391 (137 S. E. 98), affirmed in 165 Ga. 121 (139 S. E. 909); Central of Georgia Ry. Co. v. Jones County, 37 Ga. App. 763 (142 S. E. 301). Whether the rule would be different in case of a mandamus need not be considered under the present record. In Central of Georgia Ry. Co. v. Wright, 165 Ga. 1 (139 S. E. 890), there is an opinion by Chief Justice Bussell, concurred in by Justices Beck and Atkinson, which, if it had been rendered by a majority of the court, would seem to sustain the tax levy under consideration; but since, as indicated, only three of the Justices concurred in that ruling, it did not amount to such a decision by the court as to adjudicate the question presented.

If our conclusion as above stated should appear to be in conflict with anything said in Central of Georgia Ry. Co. v. Wright, 165 Ga. 623 (supra), we think that under the facts of that case a decision was not required as to whether a county may levy more than 150 per cent, of the State tax to pay current expenses and accumulated debts, and thus that whatever may have been said or intimated there upon such question need not be followed as controlling, in view of other and previous decisions of the Supreme Court, as above cited.

It follows from what has been said that the tax levy now in question was excessive in so far as the amount levied in items 2, 3, 4, 7, and 8 exceeded 7-1/2 mills or 150 per cent, of the State tax of 5 mills, that is, to the extent of three fourths of one mill.

There is no merit in the contention that item 7 was a levy for two items without specifying the per cent, for each. A tax for tick eradication is a tax for sanitation, so that that item was but for one purpose, and, hence, was not illegal upon the ground stated. Townsend v. Smith, 144 Ga. 792 (2) (87 S. E. 1039); Richter v. Bacon, 145 Ga. 408 (2) (89 S. E. 367).

Judgment reversed.

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


text:
    18896.
    TWIGGS COUNTY BANK v. McCALLUM.
    Decided February 21, 1929.

      Jones, Jones & Johnston, for plaintiff.

      L. D. Moore, J. D. Shannon, for defendant.
   Stephens, J.

(After stating the foregoing facts.) Article 19, section 46 of the banking act approved August 16, 1919, and effective January 1,1920 (Ga. L. 1919, p. 135 et seq.), provides that “all transfers of notes, bonds, bills of exchange, or other evidences of debt owing to any bank, or deposits to its credit; all assignments, mortgages, conveyances or liens; all judgments or decrees suffered or permitted against it; all deposits of money, bills or other valuable things for its use, or for the use of its stockholders or creditors; and all payments of money, either after insolvency, or in contemplation of insolvency, with a view to prevent application of its assets in the manner prescribed' in this Act, or with a view to the preference of one creditor over another, shall be null and void, provided such acts enumerated were committed within three months prior to the failure of such bank.”

One who has money in a bank on general deposit is a creditor of the bank, and a withdrawal by the depositor of any of the money so deposited is a payment of money out of the assets of. the bank. Hill v. Western & Atlantic Railroad Co., 86 Ga. 284 (12 S. E. 635); McGregor v. Battle, 128 Ga. 577 (58 S. E. 28, 13 L. R. A. (N. S.) 185). The petition, in alleging payment by the bank to a depositor of money on general deposit in the bank, alleges a payment of money to a creditor of the bank in contemplation of the above-stated provision of the banking act.

It is insisted by the defendant that, after the passage of the banking act of 1919, it was essential to the invalidity of a payment of money by an insolvent bank to a creditor that at the time of payment the creditor had knowledge of the insolvency of the bank. In support of this contention reliance is had upon section 2360 of the Civil Code of 1910, which provides that “all conveyances, assignments, transfers of stocks, or other contracts made by a bank in contemplation of insolvency, or after insolvency, except for the benefit of all creditors and stockholders, shall be fraudulent and void, unless made to an innocent purchaser for value without notice or knowledge of the condition of the bank.” Whether or not the provisions of this section have application to the payment by an insolvent bank of money on deposit to a depositor therein, they are, in so far as they ma}’- conflict with the provisions of the banking act of 1919, superseded and repealed by the provisions of the later act. The act of 1919 is very elaborate. Its codification in both the Park and the Michie codes contains about 221 sections. In the volume of the published acts it covers 87 pages. It deals exhaustively with banking conditions in this State, and in article 21, section 1, it provides that when the act takes effect, it “shall then supersede all existing laws regulating banks and banking in this State.” There being in the act no provision making knowledge of the insolvency of the bank on the part of a person receiving payment of money from the bank a condition to the invalidity of the payment, no knowledge on the part of the defendant of the insolvency of the bank, as provided in section 2360 of the Civil Code of 1910, which is expressly repealed by the act of 1919, supra, is required to render invalid a payment of money to the defendant by the bank while the bank is insolvent and within three months prior to its failure. As to what manner of payment would prevent the application of the assets of the bank in ’the manner prescribed by the banking act or would constitute a preference, or what proof would be required to establish the insolvency of the bank at the time of payment,-this court now is not called upon to decide. It is sufficient now tó hold that it is essential to the invalidity of the payment óf money by a bank that the bank at the time be insolvent and that the payment be made with the purpose and intent and under the other conditions referred to in the statute. The petition is good as against general demurrer and the allegations in the petition are matters for proof upon the trial.

Under the allegations in the petition the payment by the bank of tbe money on deposit to the depositor was, under the provisions of the banking act of 1919, mill and void. After the failure of the bank, the money was subject to recovery by the superintendent of banks, having control of the bank for the purpose of liquidation. The court erred in sustaining the general demurrer to the petition. Judgment reversed.

Bell, J,, concurs. Jenkins, P. J., concurs in the judgment.


text:
    18906.
    Jones v. Roper et al.

   Stephens, J.

1. Where a person purchased an entire apple crop in an orchard, relying upon the seller’s representation that the crop consisted of between three and four thousand bushels, and gave his .note for the purchase-price, payable in thirty days, and where, after he had gathered about two hundred and fifty or two hundred and sixty bushels of apples, he ascertained that this was all of the crop that was ready to be gathered, and made a new agreement with the seller by which the time for payment stated in the note was extended, and in lieu of that note gave a second note, relying upon the seller’s representation that the orchard would, from a later crop, produce the number of apples originally represented, the purchaser, in giving the second note upon the second representation, waived the right to rely upon fraud, if there was any, arising out of the first iepresentation as to the number of apples in the orchard. Edison Electric Co. v. Blount, 96 Ga. 272 (23 S. E. 306) ; McGinnis v. McCormick, 28 Ga. App. 144 (110 S. E. 341). Where the purchaser afterwards ascertained that the late crop would not produce the number of bushels of apples which the seller represented it would produce, and that therefore the orchard would not produce that number, the purchaser could have rescinded the contract for fraud, if there was any, arising out of the seller’s representation as to the amount of apples which the orchard would yield from the late crop, by promptly repudiating the contract and offering to restore to the seller the benefits received by the purchaser. A mere notification to the seller by the purchaser, after- he had discovered the fraud, that he would not take any more apples, unaccompanied by any offer to restore the benefits received, did not amount to a rescission of the contract by the purchaser, but amounted only to notice of a refusal to carry out -the contract. An indefinite offer by the purchaser to pay for the apples already received without stating the price or value which he offered to pay, which offer was made on condition that the seller would release the purchaser from the contract, and which does not appear to have accompanied the offer to rescind, was not such a definite, unconditional offer, timely made, to restore the benefits received by the purchaser under the contract, as would be a basis for rescission of the contract by the purchaser. Where the purchaser, in a communication to the seller, expressly repudiated the contract and notified the seller that he would not carry it out, upon the express ground that the seller had indicated an intention to repudiate the contract by appropriating to her own use fifteen bushels of the apples in the orchard, and the purchaser requested a return of his note for the purchase-price, but did not offer restitution, this act of the purchaser, while it indicated an attempt by him to rescind the contract, not on account of fraud, but for an act by the seller which amounted to no more than a breach of warranty, if that, constituted no rescission of the contract by the purchaser. In a suit by,the seller against the purchaser, upon the second note, where the only evidence adduced as tending to show a rescission of the contract by the purchaser was as indicated above, the evidence was not sufficient to authorize an inference that the purchaser had rescinded the contract.

Decided February 21, 1929.

John E. Eranlcum, II. E. Edwards, for plaintiff;.

McMillan & Erwin, J. O. Edwards, for defendants.

2. Where, in a suit upon a’note given by the defendant for the purchase-price of apples, it appears from uncontradicted evidence that the defendant received some of the apples, which were of value, and did not pay for them, the evidence is insufficient to authorize an inference that the consideration totally failed.

3. Since it appears conclusively from the evidence that the defendant had not established any defense to the note, he can not .dispute the title of the plaintiff as a transferee upon the ground that the plaintiff was not a bona fide purchaser for value. Civil Code (1910), § 4290.

4. The evidence was insufficient to authorize the verdict found for the defendant. Judgment reversed.

Jenhi/ns, P. J., and Bell, J., concur.


text:
    18928.
    MACK v. PARDEE.

      Decided February 21, 1929.

      Branch, Snow & Alexander, for plaintiff in error.

      H. E. Merry, E. K. Wilcox, contra.
   Bell, J.

R. S. Pardee brought suit against E. E. Mack for $13,045, alleging: On July 1, 1926, the plaintiff sold and delivered to the “defendant......shares of the capital stock of Southern Saw Mill Company, a corporation,” the consideration of which was an amount due upon a note held by Mack against Pardee, and cash in the sum sued for, to be paid by Mack “at once.” The defendant has failed and refused to pay the same though requested to do so. The defendant in his answer made a general denial of the plaintiff’s allegations, and filed no other plea. The jury returned a verdict in favor of the plaintiff; whereupon the defendant moved for a new trial on the general grounds, and on two special grounds complaining of errors in the charge of the court.

Counsel for the plaintiff in error insist in their brief that the evidence shows that the alleged contract was unenforceable under the statute of frauds, and thus that a new trial should have been granted upon the ground that the verdict was contrary to the evidence and to law. But, in view of the record as made, no question as to the applicability of the statute can be considered under the general grounds of the motion for a new trial in this case. In Bridges v. Williams, 148 Ga. 276 (96 S. E. 499), the Supreme Court held: “Where the statute of frauds was not pleaded, and there was no demurrer, motion for nonsuit, or objeetion to testimony, so as to invoke a ruling in the court below on that subject, this court will not grant a new trial on the ground that the verdict is contrary to law because it appears that the contract sought to be enforced should have been in writing.” See also Tift v. Wight, 113 Ga. 681 (2) (39 S. E. 503); Brannen v. McElveen, 19 Ga. App. 518 (91 S. E. 913). Other cases to the same effect might be cited.

An important question is presented, however, as to whether there was such a completed sale as would authorize the form of action which the plaintiff adopted. The petition is framed upon the theory of an executed transaction, that is, one in which the stock was sold and delivered, leaving nothing else to be done except for the defendant to pay the price agreed on. It appeared from the plaintiff’s testimony that the stock at the time of the sale was already in the possession of the defendant, having been pledged to him by the plaintiff as security for a note made by the plaintiff to the defendant, upon which there remained due a balance of $79,775.

The number of shares was 650, represented by-four certificates, as follows: Two to the plaintiff’s wife, one for 40 shares issued in 1918, and the other for 360 shares issued in 1922; two certificates to the plaintiff, one for 25 shares issued in 1920, and one for 225 shares issued in 1922. After first being transferred in writing by the apparent owner, each of the four certificates was pledged, as above stated, on or soon after the date of issue, the transfer by Mrs. Pardee having been made in blank, and the transfers by the plaintiff having been made specifically to Mack, the pledgee. The plaintiff claimed upon the trial to have owned all stock at the times when he pledged the certificates respectively to the defendant, and also at the time of the alleged sale.

The plaintiff testified: “I sold my stock to Mr. Mack in the early part of June, 1926, and had a definite understanding as to the purchase and sale. Mr. Mack had the stock certificate the last time I saw it; it was delivered to him and accepted by him and he was to pay for it $13,045. That was not the total price for the 650 shares; it was the balance due after surrendering my note. I owed Mr. Mack some money at that time. It was represented by a note. I sold my stock to Mr. Mack and it was accepted by him. I did not pay him the money I owed him at that time. I surrendered the stock certificate to him. I paid him by selling him the stock and he accepted it in payment of all that I owed him and there was a balance coming to me of $13,045. He has never paid it, but he promised to pay it. It was a cash transaction; he was to pay me at that timé or within a very' few days. I insisted on his paying, but he .has never done so. . . I sold him my stock and we agreed on the book value. The book value we agreed on was $142.50 per share and that is what he agreed to pay me. Mr. Mack owes me the amount for which I am suing, and it is just, true, due, and unpaid. . . We figured the thing down, Mr. Mack figured by the interest he gave me according to the payments, figured up $27,275 interest on the note, which left a balance due me on the book value at that time of $13,045.' That was in June of last year. Mr. Mack told me he did not have the money to pay me right then, but would get it as quick as he could. Nothing additional was done about my note or about the transfer of the stock. The stock was already in his possession'. It had been transferred to him as collateral security. No change was made; no stock was issued. It was already transferred to him. Nothing was done with reference to delivering up the note which Mr. Mack still has. . . We did not have an agreement in June that at some time he would buy the stock back, but that at some future date he would pay me for it. He told me he had agreed to the price and he would take it. He told me the first of July when I left that he had a long-distance conversation with Mr. Justice and was going east to see Mr. Justice, who was going to put up more money into the business, and that he would pay me next week. I had not at that time demanded the note. I did not care anything about the note; I considered it paid; all I wanted was to get the balance due. I considered it paid by. our agreement. . . When we actually closed the transaction we had a definite agreement as to the amount that was to be paid. It was the understanding-that he was to pay me then. He did not pay me then. He said he didn’t have it right then. He promised me he would get it during the month of June. . . ■ At the time Mr. Mack and I were negotiating on the final price of the stock we made up the figures on which we based the price jointly. We were in the office of the Southern Sawmill Company. . . Mr. Mack and I made up a complete statement which reflected what both agreed upon was the proper book value of my stock on that date, and I agreed to sell and he agreed to buy. I sold on that basis and he bought on that basis. ' I do not owe that note for $94,000. I paid it by selling Mr. Mack the stock. . . I have never made any demand on Mr. Mack in person or in writing for my note which he holds. At the time the transfer was made on those stock certificates it was made for the purpose of security and not to transfer title. I do not claim that I sold the stock to Mr. Mack at the time those transfers were signed. . . The stock still showed on -the books in my name, but showed on the stock certificates that he could transfer it when it became necessary to hold his title. New stock certificates were not issued to him. In June, 1926, when I claim that I sold him the stock, it was exactly that way as he held it in June, 1918. I never knew what was done with them. So 4ar as I know, nothing was done in June to alter the status of the record at all. I supposed he had transferred it; nothing was said about that. He understood he had bought the stock. I did not make a formal demand on him to transfer. I presumed that he would, because he promised to pay me it the following week and he had the certificates authorizing him to transfer it. He had it in his power to transfer that stock on the books of the company. It was Mr. Mack’s business to have the stock reissued.”

While the plaintiff’s testimony indicates an impression on his part that all the stock was pledged in 1918, which could not have been true in view of the dates of the several certificates and of the transfers appearing thereon, this discrepancy between the testimony and the documentary evidence did not as a matter of law destroy the probative value of the testimony, and it is undisputed that all the stock was in the hands of the defendant as security for the indebtedness, at the time of the alleged sale. ■

As to the certificates issued to Mrs. Pardee, the plaintiff testified: “When the stock was issued to her she transferred it in blank, gave it back to me on the same day, to be my stock, and I took it and gave it to Mr. Mack; he accepted it as my stock. I don’t remember what I said at the time I delivered it to him. He took it and put it with the other certificates in his private drawer.”

As will be seen from the above statement, the plaintiff’s case rested entirely upon oral testimony, unaccompanied by proof of any physical change in the status of the property, or Of any act by the vendee, asserting dominion over it. The certificates had been delivered previously in pledge, and nothing further was done at the time of the alleged sale except that the parties agreed on the purchase-price, with the plaintiff verbally relinquishing his interest and the defendant in like manner accepting the same.

Was this a completed sale, or was it merely a contract to make a sale ? If the sale was executed, then the plaintiff could sue for the purchase-price; whereas, if there was only an executory agreement to make a sale, such an action would not be maintainable. A breach of an executory contract for the purchase of goods will not support an action upon an open account for the price thereof, but the vendor’s remedy is a suit for damages for the breach. Dilman v. Patterson Produce Co., 2 Ga. App. 213, 216 (58 S. E. 365); Maddox v. Wagner, 111 Ga. 146 (36 S. E. 609); Oklahoma Vinegar Co. v. Garter, 116 Ga. 140 (2) (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112).

“Three elements are essential to a contract of sale: 1. 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. “Generally, the delivery of goods is essential to the perfection of a sale. The intention of the parties to a contract may dispense therewith; delivery need not be actual; constructive delivery may be inferred from a variety of facts. Until delivery is made or dispensed with, the goods are at the risk of the seller.” Civil Code (1910), § 4125.

If, under the facts as testified to, the title passed to the defendant, and nothing remained to be done except for the defendant to pay the purchase-price, including surrender of the plaintiff’s note, the action was rightly brought, and the plaintiff was entitled to recover. “When the terms of the sale are agreed on, and the bargain is struck, and everything which the seller has to do with the goods is complete, the contract of sale becomes absolute, as between the parties, without actual payment or delivery, and the property and risk of accident to the goods vest in the buyer.” Woodward v. Solomon, 7 Ga. 246, 253. “Where the terms of a special agreement have been performed on one side, and nothing is to be done on the other but to make a money payment, such payment may be enforced by indebtitatus assumpsit.” Hancock v. Ross, 18 Ga. 364 (1). See also Allen v. Hollis, 31 Ga. 143, 146; Butler v. Lawshe, 74 Ga. 352 (4); Hill v. Balkcom, 79 Ga. 444 (5 S. E. 200); Wholesale Mercantile Co. v. Jackson, 2 Ga. App. 776 (2), 782 (59 S. E. 106); Good Roads Machinery Co. v. Neal, 21 Ga. App. 160 (5) (93 S. E. 1018). In 35 Cyc. 192, it is said that “If at the time of the sale the property is already in the possession of the buyer no formal delivery is necessary to complete the transfer and fix his liability.” In such a case “no further act of delivery is ordinarily essential.” Id. 311.

In view of the above principles, we think the evidence was sufficient to authorize the inference of a completed sale, and thus to warrant the verdict in favor of the plaintiff, where no question as to the applicability of the statute of frauds was involved. For reasons stated above, no decision is here made as to whether the sale was so executed as to render the statute of frauds inapplicable.

While the plaintiffs testimony tended to show that the price of the stock was to be paid at once or presently, and we have dealt with the case as made in the record, we do not intend to say that an agreement for the immediate payment of the purchase-price is essential to an executed sale. There may be such a sale even though the parties agreed upon a later date for such payment, and a sale which is otherwise in fact executed is not executory merely because it is made on credit. 35 Cyc. 266.

2. The court charged the jury as follows: “With reference to this particular case, if the price was fixed and the delivery was complete it took it without the statute of frauds. By the delivery being complete I mean this: that if the plaintiff delivered the stock to the defendant as collateral only, that would not be such complete delivery as would constitute a sale. On the other hand, if it was agreed between the plaintiff and the defendant that the balance due was to be paid as alleged in the petition, and that the defendant was to receive this stock in fee simple, not as collateral but in fee simple, — that he was to be the absolute owner of it,— then and in that case the delivery would be complete.”

The motion for a new trial complains only that the following language of this excerpt, to wit: “If it was agreed between the plaintiff and the defendant that the balance due was to be paid as alleged in the petition, and that the defendant was to receive this stock in fee simple,” implied a future payment and a future delivery, and was calculated to confuse and mislead the jury, in that it was susceptible of the construction tha,t if the defendant was at some future time to pay the balance of the purchase-price and not until then to receive the stock in fee simple, the jury would be authorized to find for the plaintiff, and that such an agreement would satisfy the requirements of the statute of frauds.

There is no merit in this contention. The charge excepted to must be construed in the light of the petition and the evidence. The petition alleged that the stock was sold and delivered and that the defendant was to pay the amount of the purchase-price, less the note, at once. There was no issue under the evidence as to an agreement for a future sale or delivery.

The plaintiff testified to a 'completed transaction, while the defendant testified there was neither this nor any other sort of transaction between him and the plaintiff with regard to the stock. The charge could not reasonably have been construed as referring to a contract for a sale to be consummated in the future. The issue was only as to whether there was a contract which was executed, or no contract at all.

The charge plainly referred to this issue and was clearly intended to submit only the question of whether the defendant assented to the present and immediate acceptance of the stock as owner, in terms of the agreement as testified to by the plaintiff. We do not construe the assignment as complaining of any error in the above instruction unless it should or might be interpreted as referring to an executory contract. In other words, there appears to be no contention that the statute of frauds would be applicable, or that the charge would be in any respect erroneous, unless the agreement was in reference to a sale to be executed in the future.

The charge was not subject to the criticism made upon it, and there was no error in overruling this ground of the motion for a new trial.

3~. Error is assigned upon the following charge of the court: “If you find from the evidence that Mrs. Pardee in writing gave or conveyed in fee simple the stock issued in her name to R. 8. Pardee, R. S. Pardee has a right to sell said stock, transferring of said stock in blank raises the presumption that the person holding said stock had a right to dispose of same. This presumption is of course rebuttable.”

It is complained that this charge was error because it was not a correct statement of the law and was inapplicable to the facts. It is set out that the evidence showed that a portion of the stock had been originally transferred by the plaintiff to his wife for a fraudulent purpose, that is, to avoid a certain liability to which the plaintiff might later become subject, and was retransferred by Mrs. Pardee to the plaintiff for the sole purpose of being placed with the defendant as collateral security for the plaintiff’s debt. It is further contended that the evidence wholly failed to show that Mrs. Pardee authorized any sale of the stock by the plaintiff to the defendant, in fee simple, and, therefore, that the above charge, so far as it authorized the jury to find for the plaintiff that part of the purchase-price representing the value of the stock of Mrs. Pardee, was erroneous, being “unauthorized by the evidence and by the law.”

The defendant did not, either in his pleadings or in his evidence, make any issue as to the plaintiff’s ownership or right to sell. This, so far as appears, was not questioned during the trial, and, as stated in the preceding division, the sole issue was as to whether there was an executed sale or no agreement whatsoever between the parties.

Furthermore, a wife may give property to her husband, but a gift will not be presumed. The evidence to support it must be clear and unequivocal, and the intention of the parties must be free from doubt. Civil Code (1910), §3010; Rich v. Rich, 147 Ga. 488 (94 S. E. 566).

As hereinbefore indicated, the evidence showed that the stock, which was issued to Mrs. Pardee, was later transferred by her in blank and delivered to the plaintiff. He testified that she gave it bach to him, to be his stock, and that he took it and delivered it to Mr. Mack. In the absence of other evidence, this was sufficient to authorize the inference of a gift, and the transfer and delivery of the stock to the plaintiff, under these circumstances, certainly raised a prima facie presumption that he thereby became the owner, with the right to sell and dispose of such stock at will. Civil Code (1910), §2219; Bank of Culloden v. Bank of Forsyth, 120 Ga. 575 (48 S. E. 226, 102 Am. St. R. 115); 14 C. J. 675.

The instruction complained of contained a correct statement of the law, and was not inapplicable to the facts as disclosed by the evidence.

If tbe plaintiff originally directed that the stock be issued to his wife, in order to defeat some possible liability against himself, the person thus sought to be defrauded, and not the defendant, would be the proper party to attack such transaction between them. Massell v. Fourth National Bank, 38 Ga. App. 601 (4) (144 S. E. 806). But if the wife later transferred and delivered the stock back to the husband, there would seem no cause for complaint by any one, since by the latter transaction the stock was restored to the rightful owner.

There was no error in refusing a new trial.

Judgment affirmed.

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


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    18982.
    Borochorr v. National Casualty Company.
    Decided February 21, 1929.
    Rehearing denied March 2, 1929.

      George & John L. Westmoreland, for plaintiff.

      Bryan & Middlebrooks, for defendant.
   Stephens, J.

This being a suit instituted in the municipal court of Atlanta by the insured under an accident-insurance policy, in which a verdict for the plaintiff was rendered in a certain amount including attorney’s fees recoverable under § 2549 of the Civil Code of 1910, and was affirmed by the appellate division of that court, and the verdict and judgment not being demanded as a matter of law, the judgment of the judge of the superior court, sustaining a certiorari brought by the defendant and granting a first new trial, will be affirmed.

Judgment affirmed.

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


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    19003.
    BRANCH & HOWARD et al. v. GEORGIA CASUALTY COMPANY et al.

      Decided Eebruaby 21, 1929.

      Branch & Howard, for plaintiffs in error.

      Ralph Williams, Wallace Daley, Jones, Evins, Moore & Powers, contra.
   Stephens, J.

This case arose upon an intervention filed by Branch & Howard in their own behalf, praying that out of a fund of $609 which had been paid into court by the Southern Mortgage Company they be awarded a certain amount as attorney’s fees which they claim by virtue of an alleged lien upon the fund. Upon the hearing it appeared, without dispute, that Branch & Howard, as attorneys for F. W. Ewing, had, in a suit for damages against the Southern Mortgage Company for personal injuries, obtained a judgment for $6,541.66, that afterwards it was agreed that this judgment should be settled for the sum of $5,000, that Branch & Howard had a contract with Ewing by which they were to receive a third of this amount as attorney’s fees for representing Ewing in the suit against the Southern Mortgage Company, that Ewing had, for the same injury, recovered of the Weekley Elevator Company, as compensation payable under the workmen’s compensation act, the sum of $609, which the insurance carrier, the Georgia Casualty Company, had paid to Ewing. The Southern Mortgage Company, instead of paying the entire $5,000 to Ewing or his attorneys, paid into court, out of the amount represented by this judgment, the sum of $609, which is equal to the amount which the Georgia Casualty Company had paid to Ewing as compensation for the same injury. The Georgia Casualty Company also intervened and filed a claim to the $609, upon the ground that, as it had paid to Ewing $609 as compensation payable under the Georgia workmen’s compensation act for the same injury, it was, under section 2, subsection d, of the amendment to that act, approved August 16, 1922, entitled to the $609 by subrogation to the rights of Ewing against the Southern Mortgage Company. The issue arises between Branch & Howard, who claim one third of this fund of $609, which amounts to $203, in satisfaction o’f their lien upon the entire judgment of $5,000 recovered by them in behalf of Ewing in the damage suit, and the Georgia Casualty Company, which claims the entire fund of $609 and which contests Branch & Howard’s right to an attorney’s lien for fees upon this fund. The court awarded the entire fund of $609 to the Georgia Casualty Company, and Branch & Howard except to this judgment.

Section 2, subsection d of the amendment to the workmen’s compensation act, approved August 16, 1922 (Ga. L. 1922, pp. 185, 187), provides’ as follows: “When an employee coming under provisions of this act receives an injury for which compensation is payable under this act and which injury was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereto, the employee, or beneficiary, may take proceedings both against that person to recover damages and against the employer for compensation, but the amount of compensation to which he is entitled under this act shall be reduced by the amount of damages recovered. If the employee or beneficiary of the employee, in such case recovers compensation under this act, the employer by whom the compensation was paid, or the party who was called upon to pay the compensation, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the right of the employee to recover therefrom to the extent of the compensation.” Section 3364, subsection 2, of the Civil Code of 1910 provides that “upon suits, judgments, and decrees for money, they (attorneys at law) shall have a lien superior to all liens but tax liens, and no person shall be.at liberty to satisfy said suit, judgment or decree until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments, and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them.”

The attorneys for the Georgia Casualty Company, the defendant in error, contend that the above-quoted provision of the workmen’s compensation act gives to a person who has paid compensation under the act a claim, to the extent of the compensation, upon the fund recovered by the beneficiary in an action for tort against a third person responsible for the injury, superior to that of the lien of the attorneys for their fees upon the amount recovered against the third person in tort action by the beneficiary to whom compensation has been paid. In support of this contention they rely upon certain decisions of the Supreme Court of Alabama and the Appellate Division of the Supreme Court of New York. The case of Georgia Casualty Co. v. Haygood, 210 Ala. 56 (97 So. 87), relied upon by counsel for the plaintiffs in error, does not hold that the attorneys who obtained a judgment in a tort action in behalf of the beneficiary under the compensation act against a third person causing the injury -are not entitled to their lien upon the fund recovered in this action. It merely holds that where a beneficiary has recovered damages against a third person, the full amount recovered, without any reduction therefrom of an amount representing attorney’s fees, will be credited upon the compensation received by the beneficiary. The cases of Solomone v. Dagnon Contracting Co. and Kabel v. Lane Engineering Co., both decided by the Appellate Division of the Supreme Court of New York and reported respectively in 194 App. Div. 50 (184 N. Y. Supp. 735), and 196 App. Div. 669 (187 N. Y. Supp. 833), and relied upon by the defendants in error, do not hold that the attorneys representing the beneficiary in a tort action against a third person forfeit their lien for fees upon the judgment, but hold, as was stated in Kabel v. Lane Engineering Co., supra, that the full amount of the recovery, “although their attorneys receive a percentage of the recovery,” is credited against the amount of compensation recovered by the beneficiary, thus reducing the compensation by the amount recovered in the tort action. -The ruling in these cases would be applicable had Ewing, through his attorneys Branch & Howard, collected the $5,000 recovered in the suit against the Southern Mortgage Company, and Branch & Howard had actually received their fee out of this recovery in the sum of $1666.66-2/3, and Ewing afterwards had been awarded compensation against the employer and the Georgia Casualty Company, as the insurance carrier, in -the sum of $6,000, and the compensation had not been paid. The $5,000, representing the entire recovery in the tort action of Ewing against the Southern Mortgage Company, which necessarily included the amount already paid the attorneys as fees for its collection, and not the net amount less the attorneys’ fees, namely $3333.33-1/3 would be credited against the compensation. This is the situation to which the first provision of the quoted section 2 of the workmen’s- compensation act would apply. The substance of this provision is that where an injury is compensable under the workmen’s compensation act, and there is also a legal liability therefor in tort against a third person, “the amount of compensation to which he [the beneficiary] is entitled under this act shall be reduced by the amount of damages recovered.” This necessarily means a reduction by the total amount recovered, — as ■ in this case the $5,000. By an application of this provision of the act the attorneys bringing the tort action have not lost their lien upon the entire sum recovered. This provision of the act therefore may be applied with full recognition of the attorneys’ lien for fees on the sum recovered in the tort action. If, however, the compensation awarded to the beneficiary has been actually paid, which in this case amounts to $609, the person who has actually paid this compensation is, under the terms of the act, “entitled to indemnity out of the tort feasor . . to the extent of the compensation.” It is contended by the insurance carrier that this provision of the act gives an absolute right to the person who has paid the compensation to indemnity against the tort feasor out of the amount recovered against him by the beneficiary to the full amount of the compensation which has been paid, and that the insurance carrier who has paid the compensation is entitled to be thus indemnified, in the full amount of the compensation paid, out of the sum recovered by the beneficiary from the tort feasor, irrespective of and regardless of any lien for fees which the attorneys for the beneficiary may have upon the amount recovered. In other words, it is the contention, of the insurance carrier that this provision of the act repeals the act which gives to the attorneys a lien for fees in so far as this lien attaches to an amount of the judgment equal to the compensation paid. Repeals by implication are not favored, and this provision in the workmen’s compensation act will not be construed as operating to repeal the act which gives to the attorneys for tlie injured person a lien for fees upon the judgment recovered against the tort feasor unless the terms of the act imperatively demand such a construction. The expression in the workmen’s compensation act that the person who has paid compensation is entitled to “indemnity”, from the person liable in damages, “to the extent of the compensation,” does not demand the construction that this indemnity is guaranteed out of the amount of the recovery to the extent of the compensation, but is susceptible to the construction that the right to indemnity goes only to the extent of the compensation, and can -not exceed the amount of the compensation, and that indemnity up to this amount will not be paid unless such payment can be made with due regard to the existing rights of others. The insurance carrier has paid the compensation under a clear cut legal liability imposed by statute, and, but for the fortunate circumstance of there being a recovery in behalf of the beneficiary against a third person for damages for having tortiously inflicted the injury, the insurance carrier would have no indemnity whatsoever, and would suffer a total loss in the amount of the compensation which it had paid. The statute, therefore, in awarding to the person paying the compensation an indemnity out of the sum recovered by the beneficiary against the tort feasor, simply gives, -without any consideration whatsoever to the person paying the compensation, a fund to which it in equity and good conscience is more entitled than the beneficiary, who, if permitted to retain it, would receive double compensation for his injury. The act, therefore, in providing this indemnity to the person who has paid the compensation, will not be construed as giving to this person this privilege or advantage at the expense of the well-recognized rights of other people in the fund, as, for instance, the right of the attorneys of the beneficiary to a lien for their fees upon the sum recovered of the .tort feasor. Besides, the act, in giving this right to indemnity to the person paying the compensation, provides that he “shall be subrogated to the rights of the employee against the tort feasor to recover” the amount of this indemnity, “to the extent of the compensation.” It would seem, therefore, that the right of the person who has paid compensation to recover indemnity therefor is by way of subrogation “to the rights of the employee to recover” from the tort feasor. This being the case, th.e right of tb.e j>erso.n whp has paid the compensation to recover the indemnity from the tort feasor is the same right, and no more, of the employee to recover of the tort feasor. If the right of the employee to recover of the tort feasor is incumbered with the lien in favor of his attorneys upon the amount recovered, the right of the person who has paid the compensation to recover, by subrogation to the rights of the employee, of the tort feasor, an indemnity for the compensation paid is necessarily incumbered with the right of the attorneys for the employee to enforce any lien which they may have for fees against the sum recovered.

Since the person paying the compensation is not entitled to enforce his right to the indemnity at the expense of, and by encroachment upon, any lien for fees which the attorneys for the employee may have upon the sum collected in the suit for damages by the employee against the tort feasor, and since the employee is not equitably entitled to withhold from the person paying the compensation any sum recovered by the employee from the tort feasor in the nature of damages, to the extent of the amount of the compensation already paid to the employee, and thus receive double compensation for the injury, it would seem that the person who has paid the compensation is clearly entitled to indemnity, to the extent of the amount of the compensation, out of the fund recovered by the employee from the tort feasor as damages for the injury only after a deduction from the amount recovered of a sum sufficient to satisfy, for the full amount, the lien for fees of the employee’s attorneys upon the fund. Where, however, it appears that out of the amount recovered by the employee against the tort feasor there is a sum sufficient to satisfy the lien of the attorneys for fees and also to pay the compensation, the right of the attorneys to enforce their lien for fees out of the fund is not affected by allowing an indemnity to the person who has paid the compensation, in the full amount of the compensation paid.

Since the $5,000 recovered in the tort action is sufficient to pay Branch & Howard their fee amounting to $1666.66-2/3 and also the compensation amounting to $609, the full amount of the compensation can be paid to the insurance carrier by way of indemnity, and there will still remain an amount of the fund, namely $4,391, sufficient to satisfy the attorneys’ lien for fees amounting to $1666.66-2/3. While it appears from the undisputed evidence a,s agreed upon in this case that Branch & Howard, the attorneys for the employee, have not received the full amount of their fee, but are still unpaid on their fee an amount equal to a third of the $609, namely $203, yet since the balance of the fund of $5,000, less the $609, claimed by the insurance carrier as indemnity for the compensation paid to the employee, namely $4,391, is sufficient to satisfy Branch & Howard’s claim for fees in their full amount, Branch & Howard must look to this balance for a satisfaction of their lien for fees. If they have allowed the opportunity to collect their entire fee from the balance of the money coming to their client over and above the $609 to pass, the misfortune is theirs. The court did not err in refusing to award to Branch & Howard, as intervenors, any sum whatsoever for attorneys’ fees out of the $609.

Judgment affirmed.

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


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    19059.
    LOVETT v. BARWICK.
    Decided February 21, 1929.

      E. W. Jordan, for plaintiff in error.

      J. C. Newsome, M. C. Barwick, contra.
   Bell, J.

There were two successive suits in the court below between Barwick as the plaintiff and Lovett as the defendant, and it is the second of these cases which is now under review. The verdict was for the plaintiff, and the defendant complains of the refusal of his motion for a new trial.

All the transactions between the parties antedated both suits, and the main question for decision under the present writ of error being whether the defendant was concluded by the verdict and judgment in the.prior action, the facts of that case will be stated first: Bar-wick shipped to the order of Lovett a carload of lumber at the price of $350.35. He afterwards brought suit for the purchase-money, less an alleged payment of $120.93, which was credited. To that action the defendant pleaded: (1) payment, in that at the time of the shipment the plaintiff drew a draft upon him for the agreed price, which draft he paid; (2) failure of consideration to the extent of $229.42, resulting from inferior grade and shortage in quantity; (3) mistake in paying the $120.93, alleged to be the true value of the lumber, the defendant at that time “overlooking the fact that he had already paid the sum of $350.35.” The answer further alleged that the defendant had thus paid the plaintiff the latter amount over and above the true value of the lumber, and prayed that he have judgment against the plaintiff therefor.

The plaintiff sought to show that by a later agreement the $350.35 was to be withdrawn as a payment for this car and applied as a credit upon three other cars of lumber which he had sold and delivered to the defendant. But after the introduction of evidence, from which it appeared without dispute that the draft had been drawn and paid as alleged in the defendant’s answer, the court ruled that fop this reason the plaintiff was not entitled to recover, and directed a general verdict in favor of the defendant. There was no verdict or judgment on the plea of recoupment based upon the alleged failure of consideration and the payment by mistake of the $120.93, and it appears that there was no adjudication as to these matters. See Civil Code (1910), § 4337; Irvin v. Spratlin, 127 Ga. 240 (55 S. E. 1037, 9 Ann. Cas. 341). There was no appeal from the verdict and judgment in the first case.

In the second suit, the one now under review, Barwick sued Lovett for the purchase-price of the thre'e other cars of lumber, amounting to $772.27, less a credit of $406.48 alleged to have been paid. To this action the defendant filed a plea of payment and accord and satisfaction, as,follows: The defendant “has paid the plaintiff the full purchase-price for the three cars of lumber sued for in this case, and on the 13th day of September paid to the plaintiff the sum of $406.48, and agreed with the plaintiff that a payment that he had previously made upon another car of lumber sold to the defendant by the plaintiff on August 14, 1923, amounting to $350.35, should be credited on the purchase-price of the lumber sued for in this case, the actual payment made upon the date above alleged and the transfer credited on the date above alleged amounting to $756.83, which said amount fully paid the plaintiff for said three cars of lumber. It was understood and agreed between the plaintiff and the defendant that inasmuch as the defendant had receieved from a purchaser from him a report that a car of lumber sold August 14, 1923, was off in grade and short in measurement, that the payment theretofore made for said car should be applied to the purchase-price of the three cars sued upon, and that the plaintiff and the defendant would settle for the car sold August 14, 1923, upon the basis of the return made by the purchaser, the Chickasaw Lumber Company. This defendant did turn over to the plaintiff’s attorney, J. C. Newcome, the full proceeds from the said ear of lumber sold to the Chickasaw Lumber Company, to wit, $120.93, on May 14, 1924, and purchased from the plaintiff August 14, 1923, in full, final, and complete settlement of all claims and demands of the plaintiff against the defendant for any lumber sold whatsoever.” The items of $350.35 and $120.93 as mentioned in the above plea represented the same transactions which in like amounts were referred to in the first suit, and the difference between the invoice price as claimed by the plaintiff, $772.27, and that alleged by the defendant, $756.83, is accounted for by the fact that the defendant referred to the net amount of the invoices, which were made upon the basis of a two per cent, discount for cash, whereas, since the bill was not paid within the terms of the invoice, the plaintiff sued for the gross amount.

The plaintiff in the instant suit filed an amendment in which he pleaded estoppel and res adjudicata as against the defenses thus interposed, and upon the trial introduced the former proceedings 'in evidence. The defendant testified in support of allegations of his plea, after which the case was submitted to the jury, and, as above stated, resulted in a verdict for the plaintiff.

The defendant in his motion for a new trial complained of alleged errors in the charge of the court and of the refusal to admit certain documentary evidence not pertaining in any way to the adjudication in the former litigation.

In our opinion the verdict for the plaintiff was demanded by the law und the evidence, and, if this be true, any errors in the charge of the court or in the rejection of the evidence, as complained of in the motion for a new trial, were immaterial.

In the prior suit the defendant pleaded .that the payment of the $350.35 was in full satisfaction of the purchase-money of the car of lumber, to recover for which that action was brought, and, in view of the adjudication which he then obtained upon that issue, he can not now claim that this sum was by agreement to be credited upon the price of the other three cars, which was sued for in the second action.

In the second case the defendant pleaded an agreement with the plaintiff to the effect that the $350.35 previously paid for the first car would be recalled from its application to that indebtedness and credited upon the purchase-price of the other three, cars, and alleged that this sum, together with the $406.48 paid directly on the latter account, fully satisfied that claim. This constituted the plea of payment and embraced all that was alleged specifically in relation to the cause of action sued on. But since, if the payment for the first car was cancelled and the sum credited elsewhere, the result would be to leave the first car not paid for, the defendant attempted to account for the hiatus by alleging that it was further agreed that when he received returns for that car (which he had sold to a third person who had made a complaint concerning it), the plaintiff would accept such proceeds, regardless of amount, in final satisfaction of the balance due on that item. It was then averred that the defendant subsequently collected therefor the sum of $120.93, which he paid over to the plaintiff in full and complete settlement of all demands. The plea of payment thus related to the three cars, while the alleged accord and satisfaction was in reference to the first car, and appears to have been set up more for explanation than for defense. Since the former judgment adjudicated that the $350.35 went in payment for the first car, and, hence, could not have been credited upon the price of the other three cars as alleged in the plea, the claim of payment as to these cars was affirmatively disproved, and since the alleged accord and satisfaction was predicated solely upon the theory that the first car was not paid for, an hypothesis which was not sustainable in view of the prior adjudication, there was a failure to sustain this part of the plea also.

The averment that the first car was to be settled for on the basis of such returns as should be received from the defendant’s purchaser having been laid expressly upon the proposition that the question of payment for this ear remained open, and the evidence having shown, on the contrary, an adjudication to the effect that this ear had in fact been fully paid for, the alleged accord was stript of its subject-matter, in that as to that car there remained no indebtedness to compromise.

The entire plea having been constructed upon matter as to which the defendant was necessarily concluded, it could but fall with the unstable foundation upon which it rested. The defendant failed, as a matter of law, to establish either prong of the defense pleaded, and, hence, the case could not lawfully have terminated otherwise than by a verdict for the plaintiff.

The amount of principal which the plaintiff was entitled to recover was $772.27, the purchase-price of the three cars, less the payments of $406.48 and $120.93, both of which were or should have been credited only upon that indebtedness. The $350.35, having gone in payment for the first car, was irrelevant to the present issue. The verdict appears to have been arrived at in accordance with this statement.

The court did not err in refusing a new trial. Civil Code (1910), §§ 4335, 4336; Acree v. Bandy, 20 Ga. App. 133 (92 S. E. 765); Hoffman v. Summerford, 28 Ga. App. 247 (111 S. E. 68); Farmer v. Baird, 35 Ga. App. 208 (132 S. E. 260); Glausier v. Whaley, 11 Ga. App. 404 (75 S. E. 441); Smith v. Cooper, 161 Ga. 594, 604 (131 S. E. 478); Perrin v. Richardson, 142 Ga. 394 (83 S. E. 102); Central Bank & Trust Corporation v. State, 139 Ga. 54 (76 S. E. 587); Bryan v. Jones, 138 Ga. 719 (75 S. E. 1117); Mitchell v. Gillespie, 25 Ga. 346; Desvergers v. Willis, 58 Ga. 388.

Judgment affirmed.

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