author: Luke, J.

text:
    14458.
    DAVIS, director-general, v. OLLIFF.
    The killing of the plaintiff’s husband by the railway-train when he was sitting on the end of a cross-tie of the track appears from the evidence to have been due to his own negligence; the presumption of negligence on the part of the defendant was fully rebutted, and the verdict for damages was unauthorized. The trial judge therefore erred in overruling the motion for a new trial.
    Decided October 3, 1923.
    Rehearing denied November 14, 1923.

      Damages; from Bulloch, superior court—Judge Park presiding. February 24, 1923.
    Application for certiorari was denied by the Supreme Court.

      A. 8. Bradley, for plaintiff in error.

      F. A. Tuien,- Travis & Travis, contra.
   Luke, J.

In this case the director-general of railways, operating the Central of Georgia Railway Company, was sued for damages for the alleged negligent homicide of the husband of the plaintiff. It was alleged, that at the time he was killed he was sitting on a cross-tie of the railroad company, ill and unconscious, and that he was seen a sufficient distance away and a sufficient time before he was struck, by the engineer and fireman in charge of the engine drawing the train which killed him, to have brought the train to a stop before reaching him, but that the engineer made no effort to check the speed or stop the train until after it had struck and killed him; that the engineer did not use any means or make any effort to keep from running down and killing him, and could have avoided the injury by slowing and stopping the train if he had tried to do so; that he never gave warning of the approach of the train by either blowing the whistle or ringing the bell on the engine or otherwise. The petition alleged that the plaintiff’s husband, on the day of his death, was returning on foot to his boarding place and, in doing so, walked along by the side of the railroad-track, and that, while so returning and walking along said railroad-track and at a distance of about three quarters of a mile from a station, he became suddenly ill and unconscious, and while in this condition sat'down upon the end of a cross-tie forming a part of the main track of the Central of Georgia Railway Company. The negligence alleged to be the proximate cause of the death was: (1) in not bringing said train to a stop before striking said Olliff after seeing him ill and helpless on said track; (2) in not using every means in their power to prevent striking said Olliff after seeing him on said track; (3) in not giving warning of the approach of said train by blowing the whistle thereof before striking said Olliff, and in not blowing said whistle when far enough from said Olliff to warn him of the approach of said train in time for him to escape the danger; (4) in not ringing the bell' on said engine before striking said Olliff, and in not ringing said bell when far enough away to warn said Olliff of the approach of said train in time for him to escape the danger. The plaintiff alleges that such acts of negligence upon the part of the engineer and agents of the director-general in charge of the engine have injured and damaged her, and that therefore she brings this suit. The trial of the case resulted in a verdict in favor of the plaintiff, and the motion for new trial, upon the usual general grounds, and upon several special grounds, was overruled by the court.

A careful examination of the evidence in this case is convincing that the verdict was unauthorized. Each act of negligence alleged to be the proximate cause of the death of the plaintiff’s husband is disproved by uncontradicted evidence. The presumption arising against the railway company by law is completely overcome by the positive, uncontradicted, and unimpeached proof. The evidence forces the conclusion that the plaintiff’s deceased husband, in an intoxicated condition, walked along the line of the track of the railway company, and deliberately sat down on the end of a cross-tie at a distance some three quarters of a mile away from a station or a public crossing, in the nighttime, in utter disregard of his safety; and at the time the engine struck him he had in his pocket bottles containing whisky, which were broken, and the whisky saturated a part of his clothing and person. The evidence is positive that the engineer in charge of the engine was on the alert and lookout, and that upon discovering the object on the cross-tie,—the plaintiff’s husband, leaning over with his head between his knees while sitting on the end of the cross-tie,—he immediately applied his brakes and blew the whistle, and the fireman began ringing the bell on the engine. The testimony is that the brakes used on the engine and train were perfect in operation, and that other aids, such as the sanding of the track, were employed by the engineer in stopping the train. It was further shown without contradiction that the train was not running at an unusual, reckless, or negligent rate of speed. The train was on time, carrying all improved equipment for its handling and throwing its headlight properly along the rails, and was where it had a right to be, and the deceased husband of the plaintiff was on the track of the railroad company, where he had no right to be and was by law a trespasser. The allegations of negligence upon which the plaintiff bases her right to recover were, without question, met by positive, uncontradieted proof. There was no proof which would have authorized the jury to believe that the plaintiff’s husband was taken suddenly ill and, while unconscious from such sudden illness, sat on the end of the cross-tie, as alleged in the petition. There was some proof that at a time ranging months back he had been treated by a doctor for some sort of kidney trouble, but these circumstances would not have been sufficient to authorize a jury to find, as a matter of fact, that her deceased husband sat upon the cross-tie because he had become suddenly ill and unconscious. The facts and circumstances attending the homicide of the plaintiff’s husband are without contradiction, and are conclusive that he was killed by reason of his own gross negligence and lack of ordinary care, and not by any negligence of the servants or agents of the railway company. See Parish v. W. & A. R. Co., 102 Ga. 285 (29 S. E. 715, 40 L. R. A. 364), and cases cited. Since it was error to overrule the motion for a new trial upon the general grounds, the special grounds are not considered.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    14477.
    UNITED STATES FIDELITY & GUARANTY CO. v. CORBETT et al.

    The evidence in this case shows that the workman, for whose death compensation, under the workmen’s compensation act, was sought, was not an employee of the insured company in the work in which he was engaged when he was killed, but was an employee of an independent contractor. The superior court therefore erred in sustaining the award against the insurance company.
    Decided October 3, 1923.
    Rehearing denied November 14, 1923.
    Appeal; from Berrien superior court—Judge Dickerson. January 6, 1923.

      Bryan & Middlebroolcs, W. D. Buie, W. B. Tichenor, for plaintiff in error. John P. & Dewey Knight, Homer E. Oxford, contra.
   Luke, J.

Mrs. Fannie Corbett brought proceedings under the Georgia workmen’s compensation act against E. C. Bruce, Berrien Lumber Company, and United States Fidelity & Guaranty Company, to procure an award for the death of her husband, C. E. Corbett. The Industrial Commission found: that Bruce was not a subcontractor, and was little more than an employing foreman; that Berrien Lumber Company was the real employer of the deceased; and that an award be had against United States Fidelity & Guaranty Company, the insurance carrier for the lumber company, in favor of Mrs. Corbett, for herself and her two minor children, in the sum of $5 a week for three hundred weeks, and for burial and medical expenses. The case was appealed to the superior court, and Judge Dickerson, to whom the entire matter was submitted by agreement, sustained the award of the commission.

We will recite only so much of the evidence as is necessary to a clear understanding of the case. Berrien Lumber Company was operating a sawmill, of which J. M. Willis was manager. Located adjacent to the mill and on the same premises was a lath and shingle mill owned by said company, and engaged in manufacturing laths and shingles from slabs and scrap-timber from the sawmill. This shingle mill was operated by E. C. Bruce and his employees. Corbett was killed while engaged in his duties in operating the lath-making machine. Willis testified to the following oral contract between the lumber company and Bruce: “The Berrien Lumber Company furnished the machine^ and material, and Mr. Bruce furnished the labor, and we divided what we made fifty-fifty.” The lumber conxpany’s compensation insurance included all the 'workmen of the mill except those employed by Bruce. Bruce’s impression was that he was to have control of the lath and shingle mill until January 1, 1922, but the lumber company shut down that mill on September 1, and it was not afterwards operated by Bruce. Bruce also thought the lumber company had the right to terminate his contract at any time and discharge him, but Willis swore that as manager of the lumber company he had no such right, unless Bruce refused to operate the mill. Willis further testified that he did not consider that he had the right to give Bruce instructions as long as he complied with his contract, and that he never had any occasion to criticize or advise him. The lumber company usually sold the output of the lath and shingle min and gave Bruce one half of the proceeds. Occasionally Bruce sold some of the laths and shingles himself, but, as a matter of fact, each had the right to take one half of the products of the lath and shingle mill and sell them, and neither, as a matter of right, could sell the laths and shingles of the other. Bruce swore that he discussed with Willis the best manner of operating the lath and shingle mill, but that he supposed he was the final authority as to running that part of it; that as to the furnishing of timber and the manner of handling it, the lumber company would probably be final authority, but that he supposed he had sole direction as to laths and shingles. Bruce hired, paid off: with his own money, and controlled the workmen at the lath and shingle mill.

It so clearly appears to our minds that Bruce was not a subcontractor of the lumber company that we shall not discuss that proposition. The controlling and only, question for us to consider is: Was Bruce a mere servant of the lumber company, or was he an independent contractor? If the former, the recovery against the insurance carrier was warranted; if the latter, there could be no recovery. It'must be confessed that this case is not without difficulty. There are many indicia which are indicative but not conclusive as to the relationship between employer and employee; as, for instance, control of the premises by the employer, his power to terminate the contract, the mode and time of payment for the work done, and the furnishing of the workmen and appliances. It has been said that “The relation of master and servant exists whenever the employer retains the right to direct the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done.” Singer Mfg. Co. v. Rahn, 132 U. S. 518 (1) (33 L. ed. 440); 26 Cyc. 966. It was stated in Lampton v. Cedartown Co., 6 Ga. App. 149 (64 S. E. 495), that “independence of control in employing workmen and in selecting the means of doing the work is the test usually applied hy the courts to determine whether a contractor is an independent one or not; and this is the test applied by the statute of this State, supra.” That statute is section 4414 of the Civil Code (1910), which is as follows: “The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of his employer.” And see § 4415. The decision in the Lampton case, supra, quotes from Wood’s Master & Servant, § 593, as follows: “When a person lets out work to another to be done by him, such person to furnish the labor, and the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant.” “The fact that the contractor employs, pays, and has full power to control the workmen is practically decisive of his independence.” 14 R. C. L. 71, sec. 8. In the same volume it is succinctly stated (p. 68, sec. 4) that “The control of the work reserved in the employer which makes the employee a mere servant is a control not only of the result of the work, but also of the means and manner of the performance thereof; where the employee represents the will of the employer as to the result of the work, but not as to the means or manner of accomplishment, he is an independent contractor.”

The oral contract itself does not indicate the relation of master and servant between the lumber company and Bruce, and their relationship must be determined by that contract as construed in the light of the evidence. As we see it, the evidence fails to disclose that the lumber company exercised such control over the conduct of the lath and shingle mill as would make of Bruce its servant, and leads strongly to the conclusion that the lumber company was interested only in the result of the work. Again, it is undisputed that Bruce employed, paid, and had full power to control, and did control, his workmen. We must therefore conclude that the- relation of master and servant did not exist between Berrien Lumber Company and Bruce. It follows that the judgment of the lower court in affirming the award of the commission was error.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodworth, J. Bloodworth, J.

text:
    14487.
    SCHOFIELD’S SONS CO. v. GEORGIA QUINCY GRANITE CO.
    Decided October 3, 1923.
    Adhered to on rehearing, January 16, 1924.
    Complaint; from city court of Macon—Judge Gunn. March 29, 1923.
    Application for certiorari was denied by the Supreme Court.
    The main contention relied on by the defendant was that the contract or transaction in question was illegal and contrary to public policy. The petition as amended alleges in substance: On August 1, 1921, plaintiff was a creditor of Campbell T. King Jr. and W. T. Hines, partners, trading as the Macon Granite Company, on certain promissory notes and an open account for stated sums, and the defendant, the Georgia Quincy Granite Company, being desirous of instituting involuntary bankruptcy proceedings against these debtors and not having a sufficient number of claims on which to base the proceedings, approached plaintiff and proposed that plaintiff permit its name to be used as one of the petitioning creditors in the proceedings, and permit defendant to use its claim as one of the claims on which to base the petition. It was contemplated that as a result of the proposed bankruptcy proceedings a special benefit and advantage would flow to the defendant, in that the defendant, by virtue of the bankruptcy proceedings, would be able to reacquire properties of peculiar value to the defendant, which properties had previously been leased by the defendant to the Macon Granite Company. Plaintiff was not willing to institute involuntary bankruptcy proceedings against the Macon Granite Company, and so advised defendant. Defendant thereupon proposed to plaintiff that if plaintiff would permit the use of its name and claim as aforesaid, defendant would pay to plaintiff the full amount of the claim in the event that the defendant should succeed in getting, as a result of the said bankruptcy proceedings, title to and possession of certain property in Hancock county, occupied and operated by the Macon Granite Company as a quarry. Plaintiff then accepted this proposal, which was made orally, and furnished defendant a statement of its claim and permitted defendant to use its name and its claim in instituting the involuntary bankruptcy proceedings, as was done by the defendant, and defendant succeeded, as a result of the said bankruptcy proceedings, in getting title to and possession of the said property. The Macon Granite Compaq and the individuals composing it were thereafter (August 29, 1921) duly adjudicated bankrupts, and the assets of the said bankrupts were duly administered in the bankruptcy court. No dividend was paid to plaintiff as a creditor of the said bankrupts, nor has plaintiff been paid any amount whatever on its claim. The said bankrupts were discharged in bankruptcy on March 19, 1923, and plaintiff’s claim against them was thereby completely extinguished and rendered uncollectible. It was the natural consequence of the contract between plaintiff and defendant that plaintiff’s claim against the said bankrupts would be extinguished as a result of the very act which plaintiff promised to do and which plaintiff did as an inducement to defendant and as a consideration for defendant’s promise to pay the amount of said claim to plaintiff. Plaintijff has demanded of defendant that defendant pay to plaintiff the amount of its claim against Macon Granite Company and against the individuals composing it, but defendant has failed and refused to do so. Wherefore plaintiff prays judgment, etc.
   Bloodworth, J.

The court did not err in dismissing on oral motion the petition as amended “on the ground that it set forth no cause of action.”

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.

The judgment dismissing the petition states that the defendant specially assigned as reasons for the oral motion to dismiss: “(1) that any such contract or transaction between plaintiff and defendant as is alleged in the petition is void, because it is illegal, in that it is in violation of clause 5'of subsection B of section 29 of the act of Congress entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ approved July 1, 1898, which provides that ‘a person shall be punished by imprisonment for a period not to exceed two years upon conviction of the offense of having knowingly and fraudulently ... extorted or attempted to extort any money or property from any person as a consideration for acting or forbearing to act in bankruptcy proceedings;’ under and by virtue of which provisions defendant specially set up a claim to immunity from any such contract, and the right and privilege of having the same declared void; (2) that any such contract or transaction between plaintiff and defendant as is alleged in the petition is void for the reason that it is illegal and contrary to public policy, in that-the design, purpose, object, and natural and reasonable effect of it is to impede and improperly control or interfere with the administration of justice in a district court of the United States as a court of bankruptcy; (3) that any such contract or transaction between plaintiff and defendant as is alleged in the petition is void for the reason that there is no legal, valuable consideration moving to defendant or from plaintiff as a basis for the same; and (4) any such contract or transaction . . is unenforceable as against' defendant for the reason that it was a contract to answer for the obligation of another, and there was no written evidence thereof signed by defendant or any person by it thereunto authorized.”

In support of the contention that the transaction in question was not illegal or contrary to public policy, the brief of counsel for the plaintiff cited: 1 Collier on Bankruptcy (12th ed.), 632; 2 Id. 844; 227 U. S. 625 (29 Am. Bkr. R. 493, 496); Words & Phrases, vol. 3, p. 2622 (“extort”); 21 Am. Bkr. R. 344; 116 N. Y. Supp. 807; 6 Ruling Case Law, 751 et seq.; 13 Corpus Juris, 445 et seq.

Citations by counsel for defendant: 132 Ga. 836, 839-40; 15 A. & E. Ene. L. (2d ed.) 977; 6 E. C. L. 693, 751; 9 Cyc. 481, 504; 24 L. E. A. 206; 186 TJ. S. 181,186; 236 IF. S. 549, 554; Brandenburg, Bkr. (4th ed.), 3, 521 (sec. 715); 1 Collier, Bkr. (12th ed.), 4, 622, 635, 1244, 1488-93, 1498-1504, 15021; Civil Code (1910), §§ 3691, 3695, 3221; 44 Ga. 161; 47 Ga. 479; 88 Ga. 698; 110 Ga. 698 (5); 132 Ga. 601; 8 Ga. App. 605, 609; 111 Ga. 404; 70 Ga. 271; 242 Fed. 831, 834; 186 Fed. 693; 42 Am. Bkr. E. 503; 78 111. 481; 175 Pae. 34; 75 Mo. 937; 121 App.-Div. (N. Y.) 301 (106 N. Y. S. 39); 42 Ind. 1 (13 Am. E. 353); 18 Md. 451; 9 Ky. L. E. 621; 160 111. 22; 77 Mo. 13; 80 Hun, 80 (30 N. Y. Supp. 45); 23 N. J. L. 352;. 65 Iowa, 245 (54 Am. E. 9); 25 Atl. 661; 152 Ga. 726, 742; 130 Ga. 625; 14 Fed. 595; 51 Fed. 424; 31 App. D. C. 100 (18 L. E. A. (N. S.) 77; 235 Fed. 1000 (38 Am. Bkr. E. 127); 42 Am. Bkr. E. 503; 8 Met. 227 (41 Am. E. 503); 9 Johns. 295 (6 Am. Dec. 277); 75 N. W. 937.

J ones, Parle & J ohnston, for plaintiff.

John B. L. Smith, Grady G. Harris, for defendant.

ON REHEARING.

Bloodworth, J.

In the original hearing of this case the case of Kiser Co. v. Padrick, 30 Ga. App. 642 (118 S. E. 791), was not cited by counsel for either side, and that case was not then considered. In the motion for a rehearing counsel for plaintiff in error alleged, that, the case just referred to “being the only prior decision of this court on the identical question, not only is it controlling authority, but endless confusion would result from the announcement by this court of a principle directly in the teeth of that already announced.” Owing to this insistence this court thought it best to reopen this case and give counsel for each side an opportunity to discuss the principles involved in the case of Kiser Co. v. Padrick as they did or did not affect this ease. After carefully considering all the facts and rulings in that case, and the authorities cited in the briefs on the rehearing, and reviewing the briefs originally filed, and considering again the cases cited in them, we are of the opinion that the judgment previously rendered by this court is correct and should not be disturbed.

Judgment adhered to.

Broyles, G. J., and Luke, J., concur.


author: Bloodworti-i, J.

text:
    14565.
    Lomax v. Woodruff Machinery Manufacturing Co. et al.

    Decided October 3, 1923.
    Rehearing denied December 5, 1923.
    Money rule. Before Judge Park. Greene superior court. February 26, 1923.
    Application for certiorari was denied by the Supreme Court.

      J. 8. Callaway, J. C. Faust, J. C. & H. E. Edwards, for plaintiff.

      G. A. Johns, Noel P. Parle, for defendants.
   Bloodworti-i, J.

Under an attachment for purchase-money in favor of Woodruff Machinery Manufacturing Company certain personal property was levied on and sold. A petition for a rule was brought by T. B. Lomax against the sheriff for the money arising from the sale. Under all the facts of the ease, the trial judge properly awarded the fund, less the costs, to the Woodruff Machinery Manufacturing Company.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Bloodworth, J.

text:
    14575.
    HEYWARD v. RAMSEY.
    The demurrer on the ground that the allegations of the petition “do not show how the alleged account is either a stated account or an agreed account” should have been sustained; and the error in overruling the demurrer rendered the further proceedings nugatory.
    Decided October 3, 1923.
    Adhered to on rehearing, January 17, 1924.
    Motion for rehearing denied February 25, 1924.
    Complaint; from Habersham superior court—Judge J. B. Jones. March 5, 1923.
    Ramsey’s petition alleges: “Par. 1. That B. C. Heyward is indebted to your petitioner in the sum of two hundred and fifty dollars, besides interest, which indebtedness is due upon an account stated and agreed to by said Heyward. A copy of said account is hereto attached and made part and parcel of this petition and this paragraph and marked Exhibit A.—Par. 2. That said account became due and payable August 1, 1921, and has drawn interest at the rate of seven per cent, per annum since the first day of August, 1921, and will continue to draw interest at the same rate until paid.—Par. 3. That said B. C. Heyward fails and refuses to pay said account or any part theredf, after the same has been demanded.'—Wherefore petitioner prays that process issue,” etc. Exhibit A is as follows: “B. C. Heyward in account with D. H. Ramsey. 1921, August 1st. To services rendered, as per contract, to said B. C. Heyward in assisting Mm in negotiating the trade in selling the Carmichael land Dr. L. G-. Hardman. $250.00.”
    The grounds of the demurrer are: “1. That said petition sets forth no cause of action. 2. The facts contained in paragraph 1 of the said petition are specially demurred to for the reason that the allegations therein do not show how the alleged account is either a stated account or an agreed account. 3. That said petition does not show when the alleged services were rendered, how they were rendered, and what the result of the alleged services was. 4. That the said petition fails to show what the terms of the alleged contract mentioned in the alleged account were.”
    The court overruled the demurrer; the trial of the case resulted in a verdict against the defendant for $150 and interest; his motion for a new trial was overruled, and he excepted, assigning error on the rulings stated.

      Thad. L. Bynum, for plaintiff in error.

      J. G. & E. E. Edwards, contra.
   Bloodworth, J.

This is a suit upon an account stated. In Ward v. Stewart, 103 Ga. 260 (3), 262 (29 S. E. 872), it was held that “an account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.” See also, to the same effect, Borders v. Gay, 6 Ga. App. 735 (65 S. E. 788); Shores-Mueller Co. v. Bell, 21 Ga. App. 195 (1) (94 S. E. 83); Moore v. Hendrix, 144 Ga. 646 (1a) (87 S. E. 915). Thus, it is apparent that the necessary elements of an “account stated” are previous transactions, the fixing of an amount due in respect to such transactions, and a promise to pay. It is true that the promise to pay may be either express or implied, and, therefore, in order for a petition to be held defective because of a failure to allege such a promise, the defect should be pointed out by a special demurrer. Shores-Mueller Co. v. Bell, supra. However, in the instant case none of the elements of an account stated were alleged, and the defendant specifically demurred to the petition on the ground “that the allegations therein do not show how the alleged account is either a stated account or an agreed account.” It follows that the trial court erred in overruling the special demurrer, and this error rendered the further proceedings in the case nugatory.

(a) In view of the allegation in the petition, that the “indebtedness is due upon an account stated and agreed to ” by the defendant, and the statement in the brief of counsel for the plaintiff; in error that' “this is a suit upon an account stated,” and under all the allegations of the petition, we cannot hold that the suit is one upon an “open account” rather than an “account stated.”

Judgment reversed.

Broyles, 0. and Lulce, J., concur.


text:
    14601.
    SOUTH GEORGIA GROCERY COMPANY v. VIRGINIA BAKING COMPANY.
    1. The defendant having filed a plea in which it admitted a prima facie ease and pleaded a set-oil, apd having failed to sustain by proof the defense set out in its pleadings, the court did not err in directing a verdict and entering a judgment against it.
    2. The admission in evidence of the letter of which complaint is made is not reversible error. Even had the case gone to a jury with this letter rejected, the evidence, construed in its most favorable light to the defendant, did not establish its defense.
    Decided October 3, 1923.
    Rehearing denied November 14, 1923.
    Complaint; from city court of Quitman—Judge Baum. April 9, 1923.
    Application for certiorari was denied by the Supreme Court.

      Sam. T. JIarrell, Bennet & Bennei, for plaintiff in error.

      Branch & Snow, contra.
   Bloodworth, J.

Virginia Baking Company brought suit against the South Georgia Grocery Company on an open account for $501.78, for crackers shipped to the defendant. The, defendant admitted the correctness of the account, and admitted that the crackers for which this account was due were satisfactory, but, by amendment to its answer, alleged that the plaintiff had previously sent to it three shipments of crackers which were wholly worthless, and for which the defendant had paid to the plaintiff $707.28. Defendant pleaded this amount as a set-off, assumed the burden, and contended that the plaintiff was indebted to it for the difference, viz. $205.50. The judge directed a verdict for the plaintiff for the full amount sued-for, with interest, and entered judgment therefor. The defendant assigns error on the direction of the verdict and the entering of the judgment, and also on the admission in evidence of a certain letter from plaintiff to defendant.

The dates of the shipments in controversy were March 15, June 9, and June 11, 1920, and they were paid for by the defendant company on March 27, June 26, and June 19, 1920, respectively.

There are three main questions involved: (1) At the time the crackers were received by the defendant company were they of an inferior quality, due to improper manufacture by the plaintiff, or did the alleged damage result from the defendant’s keeping them too long? (2) Did the defendant exercise due diligence in inspecting the crackers and ascertaining any defect therein that may have existed? (3) Did the defendant submit evidence from which the jury could determine what loss, if any, it sustained by virtue of the alleged defective crackers ?

Conceding that under the evidence it was a question.of fact for the jury to determine whether the alleged damage to the crackers was due to improper manufacture by plaintiff, or to being kept too long by defendant, and conceding that there was an issue of fact as to whether the defendant, under all the circumstances, exercised proper diligence in ascertaining the latent defect, if there was' any, in the crackers, still the third point above mentioned is vital to the defense, and the record fails to disclose that the defendant submitted evidence to show the value of the crackers at the time and place of delivery, or even at the time the defect was discovered. Without this the jury could not possibly ascertain whether or how much the defendant was damaged by virtue of the alleged inferior crackers, and without this the defense could not stand, regardless of the other questions raised in the bill of exceptions. The defendant in its amended answer alleged that the crackers were worthless, but it showed by its own testimony that they were not worthless, but were sold for four cents a pound more than a year after they were received by the defendant; and, according to the testimony of both parties, crackers deteriorate with age, and a part of the testimony showed that they would deteriorate in three months. Hence, the value of the crackers more than a year after shipment would be no test of their value at the time and place of delivery. “Where there has been a breach, the measure of damages is ordinarily the difference between the value of the goods ordered and those delivered at the time and place of delivery. . . The rights and liabilities of each are fixed on that day, and subsequent changes in the value of the goods ordered or delivered are wholly immaterial.” Americas Grocery Co. v. Brackett, 119 Ga. 491 (46 S. E. 657). See also page 489 (5). In the case of Krauss v. Flournoy, 7 Ga. App. 322 (66 S. E. 805), this court held that “Merely to prove that there has been a partial failure of consideration, without giving the jury any facts from which théy could calculate the extent of the failure, is not sufficient. Where the defendant in such a case fails to make out his defense, it is permissible for the court to direct a verdict in favor of the plaintiff.” (Italics ours.) And in Oxford Knitting Mills v. Wooldridge, 6 Ga. App. 301 (1) (64 S. E. 1068), this court held that “When there is a sale of goods with a warranty of quality, and a delivery and acceptance by the buyer, if the goods prove not to correspond with the warranty, the measure of damages is the difference between the contract price and the actual value of the goods when and where delivered.” See also Ceylona Co. v. Selden Co., 23 Ga. App. 275 (1) (97 S. E. 882); Cook v. Robinson, 19 Ga. App. 207 (91 S. E. 427).

The burden was on the defendant to submit sufficient evidence to support Us affirmative defense; and while we base our opinion on its failure to submit evidence from which the jury could determine the value of the crackers at the time and place of delivery, and consequently the damage, if any, sustained, still the evidence for the defense as a whole was indefinite, and in some instances contradictory. For example, the manager of the defendant company testified that he first discovered the defect in these crackers about the first of June, and his own evidence shows that two of the three shipments were not received until June 9 and June 11. Also, in the numerous letters to plaintiff the defendant stated that it had on hand a few boxes of damaged crackers, but after they were sold submitted a claim for 114 boxes. Also, though the crackers were shipped to defendant in March and June, 1920, the plaintiff never received any statement, or even intimation, from defendant showing how many were damaged (other than- “a few boxes”) until July 6, 1921. Also, in correspondence introduced by plaintiff, dating from September 18, 1920, to July 27, 1921, the general attitude of the defendant apparently was that it had some damaged crackers on hand and felt that the plaintiff should relieve it of them because the defendant was a “good customer,” and even stated, “in the event you do not see your way clear to assist us, then we are going to dispose of this lot of loose crackers at whatever amount we can get for them, and will charge np such loss as we may have in the matter to experience.” In all of this correspondence the defendant never once stated that the damage was due to any fault of the plaintiff, even though plaintiff wrote them that it always shipped goods fresh and in good shape, and, when such was not the case, cheerfully gave proper credit. In fact none of the evidence of the defendant company shows that prior to the filing of the answer by the defendant at the April term, 1922, was plaintiff ever apprised by the defendant that it claimed that the damage was due to improper manufacture of the crackers, or that the plaintiff had in any way breached its warranty. The only evidence as to a complaint prior to the filing of the answer was by plaintiff’s own witness, who testified that “he [defendant company’s manager] contended that the crackers were of inferior qualityand immediately after this the witness said, “I do not remember that he made any complaint that it was in the manufacture of the crackers.” Other than this the record shows that prior to the filing of the answer the defendant’s contention was that the crackers were damaged, but it made no claim that the damage was due to any fault of the plaintiff.

The defendant having filed a plea in which it admitted a prima facie case and pleaded a set-off, and having failed to sustain by proof the defense set out in its pleadings, the court did not err in directing a verdict and entering a judgment against it. Tarver v. Park, 20 Ga. App. 87 (92 S. E. 552), and cases cited.

The admission in evidence of the letter of which complaint is made is not reversible error. Even had the case gone to a jury with this letter rejected, the evidence, construed in its most favorable light to the defendant, did not establish its defense. Kent v. Kennett, 11 Ga. App. 176 (74 S. E. 1002).

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


author: Bloodwortii, J.

text:
    14669.
    Deal v. Montgomery et al.

    Decided October 3, 1923.
    Rehearing denied November 14, 1923.
    Trover; from city court of Nashville—Judge W. E. Smith. April 18, 1923.

      R. A. Hendricks, John P. & Dewey Knight, for plaintiff in error.

      W. D. Buie, Story & Story, contra.
   Bloodwortii, J.

1. The motion to dismiss the bill of exceptions is overruled.

2. Ground 1 of the amendment to the motion for a new trial is not complete and understandable within itself. Who is Avera? What moving picture outfit and what building are referred to ? To ascertain this would require reference to other portions of the record, and, under repeated rulings of the Supreme Court and of this court, this ground will not be considered.

3. Special ground 2 of the motion for a new trial is also too indefinite for consideration by this court. As this court cannot look beyond the statements in this ground of the motion to ascertain what evidence was admitted, and as no evidence is incorporated in it, except what purports to be a copy of the advertisement under which the building' was sold, and the terms and conditions of a certain deed, this court cannot say that the trial judge committed error in admitting “all testimony tending to vary or change the advertisement of the property or the contents of the deed.”

4. For no reason assigned was it error to admit. the testimony of which complaint is made in the 3d, 4th, 5th, 6th, and 7th grounds of the amendment to the motion for a new trial.

5. The 8th special ground of the motion for a new trial does not even allege that the court erred in any particular, and presents nothing for the consideration of this court.

6. Under repeated rulings of the Supreme Court and of this court, it is never error to refuse to direct a verdict.

7. A new trial should not be granted because the court admitted in evidence the documents, copies of which appear in the 10th special ground of the motion for a new trial.

8. Under the facts of this case there is no error in any of the excerpts from the charge of which complaint is made, nor did the court err in refusing to comply with the requests to charge referred to in the last ground of the motion for a new trial.

9. The jury passed upon the facts; there is evidence to support their verdict, and, as no error of law was committed, this court is powerless to interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    14673.
    Stein v. Richman.
    Decided October 3, 1923.
    Complaint; from city court of Savannah—Judge Freeman. May 14, 1923.
    Selig Richman sued J. Stein on a promissory note, an alleged copy of which, attached to the petition, showed that it bore the signature of J. Stein alone. The defendant filed an answer denying the material allegations of the petition, and alleging: Exhibit A, upon which this suit is brought, is not a copy of the note signed by defendant; the note referred to bore the indorsement of Aaron Rauzin thereon at the time that it came into the possession of the plaintiff, and, while signed by defendant, was in reality the note of Aaron Rauzin, and this was known by the plaintiff. The money received as the proceeds of the note were paid to the said Rauzin, for whose benefit the loan was made; and, while Rauzin’s name appeared on the back of the note as the indorser, Rauzin was in reality the maker of the note and received the benefit of the same. Aaron Rauzin, in order to secure to the plaintiff the payment of this note and other indebtedness due by him to the plaintiff, delivered to the plaintiff, to be held by him as collateral security for the payment of the same, 220 shares of stock of the Mercantile National Bank of Savannah of the par value of $100 each, a $2,000 note secured by property in Atlanta, and 10 shares of the Rauzin Investment Company stock. The plaintiff has recognized the said Rauzin as being the maker of said note, and demanded and received monthly payment of interest from him. In the present suit the plaintiff has not accounted for the collateral security thus provided by Rauzin, which was ample in value to have protected the amount due; and defendant avers that this suit should not be maintained against him until judgment has been obtained against the said Rauzin and satisfied by the subjection of the. collateral held by the plaintiff to the payment of said debt. The said Rauzin is insolvent and unable to pay his debts, and ample collaterals belonging to him are in the possession of the plaintiff; and defendant prays that the plaintiff be compelled to set up and account for the value of the collaterals so held, against which defendant would have no recourse until payment is made to the plaintiff of his claims thereon.
   Bloodworti-i, J.

Tlie judge did not err either in striking the plea or in thereafter rendering judgment for the plaintiff.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoneur.

After amending the petition by adding that the name of A. Eauzin was signed by him on the back of the note, and by placing his name on the back of the copy of the note, the plaintiff moved to strike the answer, on the ground that it set forth no valid defense. The court sustained the motion and struck the answer, and rendered judgment against the defendant on the note, and the defendant excepted to the striking of the answer and to the final judgment.

The note contains a provision that “each of us, whether maker, indorser, or guarantor, hereby severally waives” homestead, and waives demand, protest, etc.; and in the brief of counsel for the plaintiff in error it is contended that this language shows that “it was contemplated that whenever it might become necessary to do so, the relationship of the parties whose names appeared on the note should be explainable;” that a contract of guaranty was contemplated by the parties; and that it was incumbent on the plaintiff to produce .or restore the collateral security or to account for its non-production.

Lawrence & Abrahams, for plaintiff in error, cited:

5 Ga. App. 279; 17 Ga. App. 631.

Adams & Adams, contra, cited:

Civil Code (1910), §§3559, 3556-7; 145 Ga. 864; 116 Ga. 8; 28 Ga. App. 807; 21 Ga. App. 181, and cit.; 65 Ga. 305; 125 Ga. 43; Jones, Collat. Sec. § 590, p. 712; 79 Am. Dec. 500 (note); 21 R. C. L. 685-6; 92 U. S. 618 (4); 114 Ga. 668; 150 Ga. 281, 286; 23 Ga. App. 630 (2); Civil Code (1910), § 3538; 123 Ga. 272; 111 Ga. 297-8; 11 Ga. App. 632; 141 Ga. 48.


text:
    14676.
    Shelnutt v. Davis.
    Decided October 3, 1923.
   Luke, J.

The evidence demanded the verdict. The special grounds of the motion for a new trial, complaining of the charge to the jury and the ruling of the court upon the admissibility of evidence, and the ground as to newly discovered evidence, are wholly without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.

Complaint; from Haralson superior court—Judge Irwin. April 17, 1923.

I. N. Cheney, Taylor Smith, for plaintiff in error.

Griffith & Matthews, contra.


text:
    14678.
    Cain v. Trion Company.
    Decided October 3, 1923.
    Action for malicious prosecution; from Chattooga superior court — Judge Wright. March 15, 1923.

      Wesley Shropshire, Willingham, Wright & Covington, for plaintiff. Maddox, Lipscomb & Matthews, for defendant.
   Bloodworth, J.

Tlie court properly granted a nonsuit in this ease.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    14680.
    BROWN v. TANKERSLEY.
    The evidence authorized the jury to find that the person driving the defendant’s automobile when it struck the plaintiff’s car and inflicted the injuries in question was using the defendant’s automobile in the defendant’s business and had authority to drive it.
    Refusal to allow a repetition of testimony of a witness, recalled by the party introducing him, was not error.
    Omission of instructions not requested, on the question of comparative negligence, which question was not raised by the pleadings, is not ground for a new trial.
    That the court used the word “and” instead of “or,” in charging the jury as to ordinary care on the part of the plaintiff to avoid injury “to himself and his automobile,” is not ground for a new trial, it not being likely that the jury were misled thereby or rendered a verdict which they would not have rendered had the word “or” been used.
    Decided October 3, 1923.
    Action for damages; from Floyd superior court—Judge Wright. April 25, 1923.

      Willingham, Wright & Covington, for plaintiff in error.

      Porter & Mebane, contra.
   Luke, J.

Tankersley sued Joe Brown, doing business as Brown Transfer Company, for $1,100 damages for injuries alleged to have been inflicted 'upon the plaintiff and his automobile by reason of the negligence of the driver of -the defendant’s car in driving it against the plaintiff’s automobile. The jury found a verdict for $175, and the defendant excepted. There was abundant evidence to show injuries to both the plaintiff and his car, and negligence on the part of the driver of the defendant’s automobile. The crucial question in the case is whether Wiley, the driver of the defendant’s car, had authority to use it, and whether he (was using it in the defendant’s business. From the evidence it clearly appears that Joe Brown owned and operated the Brown Transfer Company, and that Wiley was driving a car which belonged to Brown and which ordinarily was used in his transfer business. It further appears that, besides the owner, Hurmel Beyseigel and Fred Brown worked at the defendant’s place of business and had authority to send out taxicabs, but it does not appear that any other person worked there or had such authority. The preponderance of the evidence shows that the defendant was not at his place of business, on the night of the collision. Beyseigel was there, and thought Fred Brown was there also, but did not know who sent the car out. After swearing on direct examination that Mr. Joe Brown sent him out, Wiley testified on cross-examination that he didn’t know whether it was Mr. Joe or Mr. Fred, but that some one hollered out to him to run down and get these people, he didn’t know who it was called him. He later swore that “at the time there wasn’t any one there excepi. Mr. Beyseigel and Mr. Joe and Mr. Fred Brown.” Wiley did not work regularly for Brown, but only when called in.

1. The evidence was sufficient to support the verdict.

2. The court did not err in refusing to permit the witness Wiley, who had been recalled for further examination by the defendant, to testify that he did not know what person told him to take the car, this feature of the case having already been gone into thoroughly by the same witnéss, and he having previously sworn to the fact sought to be adduced.

3. “In a suit for a negligent tort, where the question of diminution of damages by reason of negligence on the part of the person injured is not raised by the pleadings of either party, it does not constitute reversible error for the court, in the absence of a request, to omit to charge on that subject, where he has charged fully as to the effect of the negligence of the injured person upon the right to recover at all; although it is the better practice to charge on the subject of comparative negligence and diminution of damages where the evidence authorizes it.” Powell v. Berry, 145 Ga. 696, (5) (89 S. E. 753, L. R. A. 1917A, 306). See also Southern Ry. Co. v. Weatherby, 20 Ga. App. 399 (2) (93 S. E. 31), and citations.

4. The concluding part of an excerpt from the charge, that plaintiff would be entitled to recover if by the exercise of ordinary care on his part he could not have avoided the injury “to himself and his automobile,” is not reversible error because the conjunctive “and” instead of the disjunctive “or” was used in the above-quoted clause, or because the charge did not apprise the jury that “if plaintiff could have avoided the personal injury to himself by the exercise of ordinary care, he con Id not have recovered on account of this personal injury, although he may not have been able to avoid the injury to his automobile by the exercise of ordinary care,” it not being at all likely that the jury was misled by the charge, or that a different verdict would, have been rendered had the word “or” been used as suggested.

5. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworih, concur.


text:
    14681.
    GRESHAM v. STEWART.
    Tliere was evidence from which the jury could infer that the plaintiff’s husband at least impliedly consented for her to board the defendant and retain the money thus made as her separate estate; and the court erred in granting a nonsuit.
    Decided October 3, 1923.
    Complaint; from Floyd superior court—'Judge Wright. April 13, 1933.
    Mrs. Gresham sued Stewart, alleging that he was indebted to her in stated amounts fpr board, bedding, washing, ironing, and sewing. In his answer he denied that he owed her or made any contract to board with her, and alleged that he made a contract with her husband and settled Avith the husband up to a named date, and was willing to settle with him for board furnished after that date, and that he had a set-off against the husband. On the trial the defendant, at the close of the testimony introduced by the plaintiff, moved for a nonsuit, on the ground that the evidence showed “that plaintiff was a married woman living with her husband at the time the contract was made and the board was furnished and services were rendered, and that under the law the earnings and services of the wife belong to the husband, and plaintiff is not entitled to maintain the suit.” The court sustained the motion and dismissed the suit, and the plaintiff excepted.
    From the evidence it appeared that the plaintiff and her husband lived together in a house rented from the defendant, on the defendant’s farm. ' In her testimony she said: “I contracted with the defendant to furnish him board for $30 a month, and he boarded with me a year and eleven months. . . lie came to our house when my husband wasn’t there, and says, ‘Mrs. Gresham, I have come to board with you.’ My husband had nothing to do with making this contract for board. I took him and assigned him to a room in the house. . . During the time that he stayed with me he did not pay me any money for board, not one cent or anything else of value, and he owes me a year and ten months’ board bill at the rate of $30 per month. lie further owes me for bedding, washing, ironing, and sewing from December 11, 1919, to December 17, 1921. That is reasonably worth $10 per month. I did his washing, starching, ironing, mending, and pressing, and furnished him a nice bed. . . He has never paid me anything. . . I had nothing to do with the renting of the place between my husband and Mr. Stewart.” The witness was asked: “Did your husband permit you to make this contract with Mr. Stewart and furnish this board, and did he give you that right ?” She answered: “No, sir, he didn’t have anything to do with it. . . My husband didn’t have anything to do with the contract for board that I heard of. It was mine and Mr. Stewart’s. I furnished most of the board to Mr. Stewart. I peddled and sold things and had my own cows and chickens that way at home. . . I never asked Mr. Stewart for a dollar board, but I asked him for a settlement. . . My husband never did have anything to do with this contract that I heard of. Mr. Stewart just came in and asked me for board and I told him I would take him and board him. That was all that was said. It was my house and butter, chickens, and eggs. I did not have to ask anybody. I have never asked anybody permission yet.” The plaintiff’s sister testified to the same effect as the plaintiff in regard to the contract for board.

      The plaintiffs husband testified: “I remember the occasion of him [defendant] coming to my house and beginning to board there. He made the contract with my wife. There was not anything said to me about it; he never mentioned it to me. My wife said something to me about it. My wife done the cooking and furnishing the board. I didn’t do anything relative to permitting my wife to make this contract and furnish the board and receive the benefit from it. My wife made it and I just told her it was all right with me if she thought she could take care of him. I gave her that right. . . I had nothing to do with the making of the contract with Mr. Stewart. He never mentioned it to me. Mr. Stewart and I had a contract in 1919 and 1920 for the rent of his farm, for a third and a fourth. . . My wife did Mr. Stewart’s washing, sewing, and mending. . . Mr. Stewart and I had contracts against each other and we have never had a settlement. . . I never mentioned to Mr. Stewart about board at all. . . Mr. Stewart never mentioned boarding at my house to me. I never discussed it with my wife before he went there, and I didn’t know anything about it until he was there and boarding there. I permitted and consented for my wife to board Mr. Stewart. I told her if she wanted to board him it was all right with me.”

      Porter & Mebane, for plaintiff. Harris & Harris, for defendant.
   Bloodworth, J.

In Cotter v. Gazaway, 141 Ga. 534 (1) (81 S. E. 879), the Supreme Court held: “At common law the earnings of the wife belonged to her husband. In Georgia, since the act of 1866, the husband may, by consent or agreement with his wife, express or implied, allow her to engage in an independent business on her own account, and to keep as her separate estate any earnings that she may make in such business. Sams v. Thompson Hiles Co., 110 Ga. 648 (36 S. E. 104); Roberts v. Haynes, 112 Ga. 842, 844 (38 S. E. 109); Belcher v. Craine, 135 Ga. 73 (68 S. E. 839).” There was evidence in this case from which the jury could infer that the husband of plaintiff at least impliedly consented that she could board the defendant and retain the money thus made as her separate estate. In East & West Railroad Co. v. Sims, 80 Ga. 807 (2) (6 S. E. 595), it was held: “If there be any evidence whatever to sustain the action, it must go to the jury, the court having no discretion in the matter of granting a nonsuit.” In Moseley v. Patterson, 27 Ga. App. 135 (107 S. E. 624), Judge Hill, after quoting section 5942 of the Civil Code of 1910, said: “The general rule announced by the Supreme Court is that a motion for non-suit should not be granted when there is any evidence tending to sustain the plaintiff's action, or where the jury can fairly infer from the evidence a state of facts favorable to the plaintiff. In Vickers v. Atlanta & W. P. R. Co., 64 Ga. 307, Judge Bleckley expressed the rule in the following original and lucid language: f Nonsuit is a process of legal mechanics: the case is chopped off. Only in a clear, gross case is this mechanical treatment proper. Where there is any doubt another method is to be used—a method involving a sort of mental chemistry; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence, and to feel every shock and tremor of its probative force.' Bearing in mind the above statutory provision and the rulings of the Supreme Court, the question arises: Was there any evidence, direct or circumstantial, tending to sustain the plaintiff's action and from which the jury could fairly deduce an inference favorable to the plaintiff? If there was, the case should not have been chopped off' by the action of the court, but should have been left to the chemists of the law,' the jury, to examine every molecule of the evidence' and determine whether it possessed any probative force favorable to the plaintiff's cause of action."

As there was some evidence “tending to sustain the plaintiff's action and from which, the jury could fairly deduce an inference favorable to the plaintiff,” the court erred in granting a nonsuit. See Reid v. Tyson, 19 Ga. App. 677 (2) (91 S. E. 1066), and cases cited.

Judgment reversed.

Broyles, G. J., and Lulce, J., concur.


text:
    14684.
    SOUTHERN RAILWAY COMPANY v. WRIGHT, comptroller-general.
    Upon the record in this case the judgment overruling the affidavit of illegality as to the tax levies for bridges and repairing court-house and jail is not subject to reversal for the reasons pointed out by the plaintiff in error.
    Decided October 3, 1923.
    Affidavit of illegality; from Douglas superior court—Judge Blair presiding. April 9, 1923.

      The execution against the railway company as set out in the record purports to be for “balance of its tax for the year 1919, due the County of Douglas.” The affidavit of illegality alleges that “said taxes were not legally levied, and there is no law for the collection of the same;” “that the board of commissioners of roads and revenues of Douglas County, sitting for county purposes on the 2d day of September, 1919, levied for the year 1919 taxes upon the taxable property of the said county at the rate of . . $13 . . on the one thousand dollars of taxable property in the county, said levy being itemized as follows:” On each $100 of the taxable property of the county: for general county purposes, 18 cents; for bridges, 30 cents; for support of paupers, 10 cents; for jail fees, 7 cents; for court-house and jail repairs, 15 cents; for salaries of officers, 10 cents; making in all 90 cents for county purposes; also 40 cents “on account of the public roads of said county;” that the items for “general county purposes” are the foregoing item of 18 cents, and the items of 7 cents for jail fees, and 10 cents for salaries of officers, aggregating 35 cents on the $100; and that these items of general county purposes exceed 50 per cent, of the State tax to the extent of $1 on the $1,000 of taxable property; that the State tax for the year 1919 was upon the basis of $5 on the $1,000 of taxable property, and the said items are to that extent excessive; that the defendant has paid all other items included in the levy, and has paid upon the basis of $2.50 on the $1,000 of taxable property for the items of general county purposes enumerated above, but has not paid more than this; that so far as the items of general county purposes exceed 50 per cent, of the State tax, to wit, upon the basis of $1 on the $1,000 of taxable property, the same are without authority of law and contrary to law.
    The bill of exceptions states that the execution was for taxes “for the year 1921;” and that the following evidence was introduced: J. H. McLarty, ordinary of Douglas county, testified: “I don’t remember whether or not there were contracts let by Douglas county in 1921 after advertisement and competitive bids submitted for the building of bridges' or repairing the court-house and jail or other public buildings. There is none on the minutes. There was a contract for Cobb county to build half of a bridge, but I don’t know what year it was. In 1921 the commissioners bought the material and hired the work done in their bridge building. I have now examined the records and don’t find any contract during 1921 for repairing the court-house, and none for bridges -except as contained in the Bankhead highway contract which is on record. The money to carry on that contract was raised by bonds. The bond issue was for $160,000, but that didn’t pay for all of the work, and some of it was paid with taxes. Taxes were levied for paying the principal and sinking fund and interest on the bond issue; that was taken care of in that way. After the completion of the highway the bond money gave out and we finished it with general taxes. There were bridges on the highway; they are not kept up by the State; they were built by the county. We had some repairs on the court-house almost every year. I did that with hired labor, just picked up a roof man and let him do it, and then paid for it. This amounted to $400 or $500 a year. We didn’t let it by contract,—just picked up a man and let him do the work. I could not say what per cent, of the county taxes would be required for that. The taxable property for that year aggregated about two million dollars. The board of commissioners did some work on the court-house on two occasions, either in 1920 or 1921, something like four or five hundred dollars’ worth of work. That was just the casual repairs. I don’t think it would run over $500. That was the aggregate repair bill of the year; it was not done all at one time. The highway contract was let, after advertisement, to the lowest bidder. These years we kept up the bridges constantly, we didn’t have enough bridge money to do the work. We have not had any left since 1919. The bond money for the highway lacked about $10,000 of finishing the work. The contract was already completed, but that $10,000 was to complete some work olf of the highway that was contemplated by the people when they voted the bonds. That was to build some roads not on the highway. There is no money in sight now to repair them; the road fund in the county is pretty short. Douglas county maintains a chain-gang.” It was agreed by the parties “that on this testimony the presiding judge should make a decision on the law and facts after consideration thereof.”
    The decision of the trial judge is set out in the following opinion. The bill of exceptions “assigns the same as error, and says that the court should have held and ruled that all of the tax items contained in the illegality were illegal and void, and that execution therefor should have been so held.” Section 387 of the Civil Code (1910) as to contracts for the building or repairing of court-houses, jails, bridges, etc., was cited in the brief of counsel for the plaintiff in error, and it was contended in the brief that “there was no legal contract for this -work at the time the levy was made; no such contract was made subsequent to the levy during 1921; the money was not expended for this purpose either legally or illegally; and the levy is illegal for the reasons set out in the record.” It was contended on the part of the defendant in error that questions raised in the brief for the plaintiff in error were not raised by the affidavit of illegality.

      Astor Merritt, Maddox, McCamy & Shumate, for plaintiff in error. J. R. Hutcheson, contra.
   Luke, J.

This case arose by reason of an affidavit of illegality filed by the Southern Railway Company to an execution issued by the comptroller-general in behalf of the County of Douglas, for State and comity taxes. The case was submitted to the judge, by agreement, to make a decision on the law and facts without the aid of a jury. The learned judge rendered the following opinion: “In so far as the levy for general county purposes is attacked in the above-stated case, to wit: one dollar upon each thousand dollars of taxable property, the illegality is sustained. Code, § 508; Wright v. C. of Ga. Ry. Co., 28 Ga. App. 356 (111 S. E. 61), and Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173). I am of the opinion, however, that the attack upon the levies for bridges and for courthouse and jail repairing cannot be sustained. Such levies are authorized by law. Code, § 513 (2); Commissioners &c. v. Porter Mfg. Co., 103 Ga. 613 (2) (30 S. E. 547); Gaines v. Dyer, 128 Ga. 589 (58 S. E. 175). I do not understand that a legal contract to build or repair is an essential requisite to the validity of such levies, but that the levies may be made, the taxes collected, and the contracts for the expenditures of the moneys so raised be made later. I am referred to the case of Garrison v. Perkins, 137 Ga. 744 (74 S. E. 541), but in that case it developed that the levy in part was to pay a debt illegally contracted, and to that- extent it was held that the levy was illegal. The record here does not show that the money when collected will be illegally expended. That other moneys may or may not have been illegally expended by the authorities would not suffice to show that this money when collected would be so expended. The conclusion reached is that the levies for bridges and repairing court-house and jail are legal, and in so far as the affidavit attacks these levies it is overruled. The execution will proceed for said amounts with interest and costs. Judgment is entered against the defendant.” There being no cross-bill of exceptions by the defendant in error, we think the judgment complained of, upon the record in this case, is not subject to reversal for the reasons pointed out by the plaintiff in error.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    14685.
    WESTERN & ATLANTIC RAILROAD CO. v. BOWEN.
    The charge of the court was correct and covered substantially the issues made by the pleadings and the evidence; and the failure to add instructions not requested in writing is not ground for a new trial.
    There being in the brief of counsel for the plaintiff in error no reference to the general grounds of the motion for a new trial, nor a general insistence on all the grounds of the motion, this court will treat the general grounds as having been abandoned.
    Decided October 3, 1923.
    Action for damages; from Whitfield superior court'—Judge Tarver. May 12, 1923.

      Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error. George G. Glenn, John G. Mitchell, contra.
   Bloodworth, J.

1. “A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions. Lucas v. State, 110 Ga. 756 (36 S. E. 87); Central of Ga. Ry. Co. v. Grady, 113 Ga. 1045 (3), 1046 (39 S. E. 441); Keys v. State, 112 Ga. 392 (4), 397 (37 S. E. 762, 81 Am. St. R. 63); Rawlins v. State, 124 Ga. 31 (16), 50 (52 S. E. 1).” Hill v. State, 18 Ga. App. 259 (98 S. E. 351). See also Nail v. State, 125 Ga. 234 (2) (54 S. E. 145); Killian v. State, 19, Ga. App. 750 (2) (92 S. E. 227); Barron v. State, 12 Ga. App. 342 (2) (77 S. E. 214). If the substantial law covering the issues made by the pleadings and evidence is given in charge, and more specific instructions are desired, a timely and appropriate written request therefor should be made. Anthony v. State, 6 Ga. App. 784 (3) (65 S. E. 816). Each of the excerpts from the charge of which complaint is made contains a correct statement of law. The charge covered substantially the issues made by the pleadings and the evidence, and was fair and impartial; and under the rulings in the foregoing cases there was no error requiring the grant of a new trial, either in the excerpts from the charge of which complaint is made or in the failure to charge complained of in grounds 3 and 4 of the amendment to the motion for a new trial.

2. In the brief of the plaintiff in error there is no reference to the general grounds of the motion for a new trial, nor is there a general insistence on all the grounds of the motion. We will therefore treat the general grounds as having been abandoned.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    14689.
    ATLANTA, BIRMINGHAM & ATLANTIC RAILWAY CO. v. McClelland.
    Where the Federal director-general of railroads was operating a railroad when suit was brought against the railroad company, service upon the railroad company was not effected by service upon an agent in the employ of the Federal director-general in the operation of the railroad.
    Decided October 3, 1923.
    Appeal; from Coffee superior court—Judge Summerall. April 28, 1923.

      Brandon & Hynds, Dart & Slater, for plaintiff in error.

      B. B. Chastain, B. A. Moore, contra.
   Luke, J.

McClelland instituted suit in August, 1919, against the Atlanta, Birmingham & Atlantic Railway Company in a justice’s court. Default judgment was rendered in June, 1920. Execution issued upon this judgment in favor of McClelland against “A. B. & A. R. R. Co.” Affidavit of illegality was filed by the Atlanta, Birmingham & Atlantic Railway Company, upon the ground that the defendant had never had its day in court, was never served with summons, did not waive or acknowledge service, and did not appear and defend the suit. The issue made by the affidavit of illegality was tried in the superior court, on appeal, and the evidence showed service of the summons on one Raulerson, in charge of the office at Nichols, Ga. The testimony of Raulerson was positive that at the time of service of the summons he was not the agent of the Atlanta, Birmingham & Atlantic Railway Company, but was the agent of Walker D. Hines, director-general of railroads, operating the Atlanta, Birmingham & Atlantic Railway Company. The verdict was for the plaintiff in £L fa.

The motion for a new trial by the Atlanta, Birmingham & Atlantic Railway Company, upon the general grounds, should have been granted. Under the presidential proclamation assuming control of the railroads, and the general orders of the director-general, all railway employees who continued in the service of the government were thenceforth during Federal control the agents of the director-general and not of the corporation. Therefore, service of a suit against the corporation upon such employee was not service upon the corporation, and a proper affidavit of illegality should be sustained. It was error to overrule the motion for a new trial. See Clarke v. So. Ry. Co., 30 Ga. App. 590 (118 S. E. 475).

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    14690.
    CHAMBLEE v. COLT COMPANY.
    Where a purchaser refuses to take and pay for goods bought by him, and the seller stores or retains them for the vendee and sues for the entire price, it is not necessary that the goods be stored in this State.
    “The validity and obligation of a contract is a matter to be governed by the lex loci contractus. The remedies for the enforcement of liabilities arising under a contract are matters governed by the lex fori.”
    The court did not err in directing a verdict for the plaintiff.
    Decided October 3, 1923.
    Complaint; from Milton superior court—Judge Blair. April 28, 1923.
    J. B. Colt Company sued S. T. Chamblee for the purchase price of a certain carbide generator and appliances, which it alleges were stored for the defendant after his refusal to accept and pay for them. The undisputed evidence shows that on November 3, 1919, the defendant gave a written order for the goods in question; that on November 11, 1919, the plaintiff accepted the order and so notified the purchaser, by letter, and in the letter said that “shipment will be made according to the instructions in said contract;” that on November 17, 1919, defendant wrote a letter to plaintiff, seeking to countermand the order, saying, “I do not think it will suit me;” that on or about November 24,1919, the plaintiff shipped the goods by rail to the defendant at Boswell, Georgia; that the defendant refused to accept the goods and they were returned to the plaintiff and were stored fox the defendant. The court, on the foregoing facts being shown, directed a verdict for the plaintiff, and the defendant excepted.

      George F. Gober, G. B. Walicer, for plaintiff in error.

      F. W. Coleman, contra.
   Bloodworth, J.

(After stating the foregoing facts.) An examination of the facts in the case of Dunaway v. Colt Co., 26 Ga. App. 554 (106 S. E. 599), will show that they are substantially the same as in this case, and we think that the rulings in that case are controlling in this one. However, counsel for plaintiff in error seeks to raise two questions which he claims were not passed upon in that case. First, he says that under the provisions of section 4131 of the Civil Code of 1910, where the purchaser refuses to take and pay for the goods ordered, and the seller elects to store or retain the goods for the vendee and sue. him for the entire price, he should store the goods in Georgia. In this contention we cannot agree with learned counsel. This is not required by the statute. In the second place, it is insisted that the contract provided that it would not be binding upon the seller until accepted by one of its officers, and that the acceptance having been signed in New York, this made it a New York contract, and as it was neither pleaded nor shown what the New York law was, the common law is presumed to be of force there, and the contract should be construed under the common law.

The Civil Code (1910), § 8, provides that “The validity, form, and effect of all writings or contracts are determined by the laws of the place where executed.” Granting that the fact that the contract was accepted by the Colt Company in New York made it a New York contract, neither the validity nor the construction of the contract is questioned. It is not claimed that the contract itself is illegal and invalid under the New York law, but it is contended that under the law of that State the only remedy of the plaintiff would be a suit for a breach of the contract. The real controversy in this case is as to the remedy the plaintiff would have under the contract in the courts of this State. “The manner in which this question shall be determined, being a matter affecting the remedy only and not the ‘validity, form or effect of the contract/ is to be controlled by the lex fori, and not by the lex loci contractus.” Mass. Benefit Life Asso. v. Robinson, 104 Ga. 256 (8) (30 S. E. 931, 42 L. R. A. 261). In the opinion in that case (p. 286) Justice Cobb said: “That the lex loci controls as to the validity, form, and effect of the contract, and the lex fori as to the remedies thereon, is simply a statement of elementary law. -The courts of the State of Georgia will recognize this contract as a valid contract, because it appears to be such under the laws of Massachusetts and is clearly such under the laws of this State, 'but will give the plaintiff and the defendant respectively, for the purpose of enforcing it on the one hand or defeating it on the other, such remedies only as are given to other persons who sue or are sued in the courts of this State.” And (p. 287) “when a party comes into the courts of this State to enforce his remedy upon his contract, that remedy will be enforced in accordance with the laws of this State regulating that remedy.” In Joice v. Scales, 18 Ga. 725 (1), it was held: “As a general principle, the lex loci applies only to the interpretation of contracts, and the remedy on them must be prosecuted according to the laws of the country in which the action is brought.” In Davis v. DeVaughn, 7 Ga. App. 324 (66 S. E. 956), it was held: “The validity and obligation of a contract is a matter to be governed by the lex loci contractus. The remedies for the enforcement of liabilities arising under a contract are matters governed by the lex fori.” In the opinion in this case (p. 325) Judge Powell said: “Where a contract, express or implied, is made in one State and an effort is made to enforce it in another, the law of the former State governs in determining what the obligation of the contract is, and in determining its validity and effect, but the question of what remedy the plaintiff shall pursue, when the obligation and effect of the contract have been ascertained and determined, is to be decided solely with regard to the law of the forum.” See Toomer v. Dickerson, 37 Ga. 428, 440; Obear v. First Nat. Bank of Birmingham, 97 Ga. 587 (25 S. E. 335, 33 L. R. A. 384).

From the rulings in the foregoing cases it is clear that the courts of this State, in enforcing a contract made in another State, will be governed by the law of that State so far as the “validity, form, and effect” of the contract is concerned, but that, as in this case, in a matter affecting merely the remedy or procedure to be followed, the laws of this State will control.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    14692.
    TENNESSEE CHEMICAL CO. v. RICKS et al.

    1. A plea good in substance and containing matter of substantial right which can be presented by a plea is good against a motion to strike.
    2. In determining • whether a defense presented consists of one or more pleas, the court will look to the substance, and not merely to the form.
    3. Where, to a suit for the purchase price of fertilizer, against three persons as a partnership, two of the alleged partners file a defense wherein they categorically deny the paragraphs of the petition, and further plead that there never was such a partnership, and that they did not purchase the fertilizer and did not authorize any one to purchase it for them either as a partnership or as individuals, the defense contains two distinct pleas, one a denial of indebtedness, and the other a plea in bar, of no partnership.
    4. Ordinarily, where more than one plea is interposed to an action, and the jury returns a general verdict for the defendant, the court should, upon a request made before the verdict is entered and the jury dispersed, have the jury specify upon which plea or pleas the verdict is based, but the court’s refusal so to do does not work a reversal unless injury concurs with error.
    Decided October 3, 1923.
    Complaint; from city.court of Fort Gaines—Judge Turnipseed. May 18, 1923.

      Lowrey Stone, Zach. Arnold, for plaintiff.

      Homer Beeland, P. G. King, for defendants.
   Luke, J.

The Tennessee Chemical Company sued Ricks, Hill & Brown, a partnership composed of F. A. Ricks, J. G. Hill and T. A. Brown, and the individuals Ricks, Hill, and Brown, for the purchase price of fertilizer alleged to have been contracted for by said partnership through said Brown, one of the partners, and delivered in accordance with the terms of the contract. Two of the alleged partners, Ricks and Hill, filed their plea and answer in four paragraphs, the first two paragraphs being a categorical denial of each paragraph of the petition, and the third and last being as follows: “Further answering, these defendants say: There is no such firm, or partnership, as Ricks, Hill & Brown. They have not purchased the fertilizer as alleged in said petition, nor did they authorize any one to purchase the same for them, either as a-firm, or as individuals, or partnership. They have received no benefit from said fertilizer. Wherefore, having fully answered, defendants pray they be discharged.” The entire answer was filed at the first term and sworn to. The jury found a general verdict for defendants Ricks and Hill.

Plaintiff complains of the court’s refusal to strike the fourth paragraph of the answer: (1) because it failed to deny that Ricks and Hill were members of the partnership- (2) because the allegation that “they received no benefits from said fertilizer” is insufficient in law and is no defense to the action brought; (3) because the allegation that there is not, and never has been, such a partnership cannot be pleaded in an answer, but should have been presented by plea in abatement. “The answer of a defendant will resist a general demurrer or motion to strike, no matter how defective in some respects the answer may be, if it contains any matter of substantial right which the defendant can present by plea.” Tuxworth v. Barber, 21 Ga. App. 748 (1) (94 S. E. 1042). Measured by this rule, grounds 1 and 2 of the motion to strike are not meritorious.

The third ground deserves more consideration. “In determining whether the defense presented consists of several pleas or of only a single plea, the court will look to the substance, and not merely to its form.” Crockett v. Garrard, 4 Ga. App. 360 (1 b) (61 S. E. 552). An examination of the answer filed convinces us that it presents two separate and distinct defenses, (1) a denial of the petition by paragraphs, which has the same effect as the plea of the general issue would have had under the old practice, and (2) a plea of no partnership. See Crockett case, supra, headnote 2. Then, was the plea of no partnership a plea in abatement or in bar? Justice Atkinson, in Bray v. Peace, 131 Ga. 640 (62 S. E. 1026), said: “It is evident, in our opinion, that it is the intention of the law that dilatory pleas shall be expressly filed as such, at the first term of the court, under oath, and that they are to be tried and disposed of before the trial on the merits.” In Crockett v. Garrard, 4 Ga. App. 366 (61 S. E. 552), it was said that such pleas must be pleaded with the greatest strictness. In the light of these authorities it is at least apparent that the defense under consideration was not pleaded as a dilatory plea should be pleaded. “If the defendant upon establishing the facts can defeat the plaintiff’s cause of action in whole or in part, or can obtain any substantial relief against the plaintiff, the plea is not dilatory, but is a plea to the merits. On the other hand, if the effect of sustaining the plea is not to deny or diminish the defendant’s liability, but is merely to defeat the plaintiff’s action as presently laid and to leave him with an unimpaired right to sue over again in some other form or way, or in some other court, on the same cause of action, the plea is dilatory.” Southern Ry. Co. v. Ansley, 8 Ga. App. 332 (68 S. E. 1090). Considering the substance of the plea, as we must do in determining its nature, we cannot escape the conclusion that its effect, should it prevail, would be to defeat the cause of action as to the two defendants pleading, and that it is therefore a plea in bar. We are confirmed in this conclusion by the cases of Long v. McDonald, 39 Ga. 187, and Solomon v. Creech, 82 Ga. 445 (9 S. E. 165). In the former of these cases, in passing upon a plea filed by one oh the partners to a suit brought against a partnership composed of two partners, that he “never authorized Phinizy to contract the account here sued on, and that he is not now, and never was, Phinizy’s partner,” the court said: “A plea denying the existence of a partnership is a plea in bar, and, although sworn to, is not a dilatory plea which is required to be filed at the first term of court.” Neither of the decisions last cited has been overruled. They were criticised in Crockett v. Garrard, supra, but, measured by the test there laid down, the plea under consideration is a plea in bar. The motion to strike was therefore properly overruled.

Plaintiff further contends that the court erred in not having the jury frame their verdict so as to show upon which plea it was based. It is generally true that “If more than one plea is filed to an action, the court should, upon a timely request from the plaintiff, cause the jury, in case they find for the defendant, to specify upon which one or more pleas the verdict is rendered,” and that “such a request is timely if made before the verdict has been recorded and the jury dispersed.” Crockett v. Garrard, supra. We think, however, that the foregoing rule must be tempered by the rule, that “Paramount to every other consideration is the rule which requires that injury shall concur with error, before the finding of a jury should be set aside.” Southern Ry. Co. v. Ansley, supra. Though sharply conflicting as to whether there was a partnership, the evidence was amply sufficient to sustain a finding of no partnership. It abundantly appears from the evidence that the fertilizer was ordered by Brown and delivered according to the contract, and this evidence is not controverted. The court’s charge that the jury should find for the defendants if they should conclude there was no partnership, and for the plaintiff if there was a partnership, was in effect the direction of a verdict against the plea of not indebted, and 'left partnership the only issue in the case. This being true, the plaintiff suffered no injury from the failure of the court to have the jury designate on which of the pleas their verdict rested.

The criticisms of the court’s charge and the exceptions to the introduction of evidence present no sufficient grounds for a reversal. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Bloodwoeth, J.

text:
    14695.
    Gower v. Di Cristina.
    Decided October 3, 1923.
    Certiorari; from Fulton superior court—Judge Bell. March 24, 1923.
    For a “real-estate commission” of $500 R. EL Gower sued Harry E. Di Cristina in the municipal court of Atlanta, alleging: that the defendant employed plaintiff to sell a certain house and lot in the city of Atlanta, known as No. 42 St. Augustine Place, at a certain price and upon certaiu terms, representing that the property belonged to his father and that he was authorized and empowered to have it sold; that, acting on this employment, plaintiff found a purchaser ready, able, and willing to buy the property upon the terms and conditions stated by the defendant; that the defendant’s father, the owner of the property, failed and refused to carry out the trade which the plaintiff had made, and it developed that the defendant did not have the authority that he claimed to-have; wherefore the defendant, “by employing petitioner and misrepresenting to him as above stated, made himself personally bound for the commission in said ease, which was agreed should be $500.” Upon the trial of the case by a judge of the municipal court he “decided in favor of the defendant, and gave judgment accordingly and the plaintiff sued out certiorari, alleging that the judgment was contrary to law and to the evidence, and was without evidence to support it.
   Bloodwoeth, J.

Tlie judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

The evidence as set out in the judge’s answer to the certiorari was as follows: The plaintiff testified: “I am a real-estate agent. . . Mr. Di Cristina authorized me to sell a house in Atlanta known as 42 St. Augustine Place for $17,500. I told him I had a customer, Dr. R. R. Byrnes, who I thought would purchase the place. I carried Dr. Byrnes out and showed him over the house. He and Mr. Di Cristina negotiated between themselves for some days. Dr. Byrnes desired to put in two vacant lots he owned on St. Charles Avenue, at a valuation of $5,000. On April 20, 1922, Dr. Byrnes submitted to Di Cristina a written offer of $12,000 cash and the two lots on St. Charles Avenue, which was on the same day accepted in writing by Di Cristina in the following language: “Accepted. [Signed] H. E. Di Cristina.” The writing referred to was introduced in evidence. Dr. Byrnes testified: “I did not agree to an absolute acceptance of the offer made through Mr. Gower, but all offers made . . were contingent upon Di Cristina’s obtaining power of attorney from his father. I was informed all the time that the defendant Di Cristina had no title and had to get power of attorney from his father in Mexico before there could be a sale of this property.”

The defendant testified: “Before I had any dealings with Mr. Gower he carried Dr. Byrnes and his wife out to see this property at 42 St. Augustine Place. I told Mr. Gower when he first approached me to sell'the property that it was not mine, but that it was my father’s who was in Mexico, and that I would have to get his consent and power of attorney before I could transfer the property, and that I had to submit all offers and all negotiations to my father, as I had no right to sell the property without proper power of attorney. I told him the terms upon which my father would sell the property would be $17,000 cash and no commission. The plaintiff said he would submit these matters to his prospective purchaser. About a day or two after this Mr. Gower came to see me personally, representing that he would negotiate for Dr. Byrnes in this matter and all transactions on Dr. Byrnes’ behalf should pass through him. Mr. Gower then offered on behalf of Dr. Byrnes $11,500 in cash and two vacant lots on St. Charles Avenue. I refused this offer and he asked me what was the best I could do. I told him I would be willing to. take $13,000 and the two lots, and submit this negotiation to my father in Mexico, but that I understood that my father did not want any vacant lots. I afterwards made this proposition through Mr. Gower: $13,500 cash and the two lots, and no commission paid by me, but all commissions were to be paid by Dr. Byrnes. This proposition was written to Mr. Gower with the clause that if the offer was not accepted within 48 hours the same would be terminated and the trade would be off. Mr. Gower took this letter to Dr. Byrnes, who read it and handed it back, saying he was not interested. . . This offer was never accepted by Dr. Byrnes.” It was dated April 14th.

The writing referred to in the plaintiff’s testimony was an undated letter of R. R. Byrnes to Harry Di Cristina, saying: “Merely confirming the gist of our conversations of yesterday: Your final proposition was that you would accept in exchange for the residence at 43 St. Augustine Place, to be delivered unincumbered, $13,000 in cash and my lots on St. Charles Avenue, contingent upon your being able to arrange satisfactorily with Mr. R. H. Gower the question of his commission. In view of the fact that Mr. Gower had failed in his efforts to arrange the sale between us, we both felt that his commission should be the subject of an equitable adjustment, and not upon the basis primarily agreed upon between you and him. Your proposition further included that if I accepted the same upon the above basis before the painting was commenced, which was contemplated would cost about $175, you would pay Mr. Gower’s commission. If, on the other hand, I accepted your proposition after the painting was commenced (Monday, April 34, weather conditions permitting), then I was to pay Mr. Gower’s commission. . . Having accepted your proposition over the phone last evening, it would appear that the subject of the arrangement of Mr. Gower’s commission between you and him is the only immediate impediment to the completion of the deal, and, according to that conversation, this was to be.taken up by you with him this morning. In that conversation I understood that you had already arranged for power of attorney from your father, who is now in Mexico, but had [?] yet actually received it; that if you did not receive it by Friday you would cable him for the same. . . You agreed that you would make your arrangements for me to obtain possession of the house above referred to not later than June 1st next. My understanding further is that the house and premises are to be delivered as is, i. e., the papering and painting contemplated by you some time ago will not'be executed by you. If our understanding is in accord as above, I will appreciate your confirming it, in order that we may both commence to execute our plans immediately.” “Accepted by H. E. Di Cristina.”

H. A. Etheridge, for plaintiff, cited:

104 Ga. 203; 139 Ga. 283.

Roy L. Mitchell, Underwood, Pomeroy & Haas, for defendant, cited:

146 Ga. 187; 152 Ga. 835; Civil Code (1910), § 3587; 129 Ga. 486, 489; 139 Ga. 296; 15 Ga. App. 210; 16 Id. 253; 19 Id. 704; 23 Id. 353; 26 Id. 196; 27 Id. 87; 5 Id. 340; 9 Id. 849; 23 Id. 578; 104 Ga. 203 (distinguished); 139 Ga. 283 (distinguished).


text:
    14697.
    Johnson v. Hicks.
    Decided October 3, 1923.
    Certiorari; from Fulton superior court—Judge Bell. April 2, 1923.
    The judgment dismissing the certiorari was as follows: “The within certiorari coming on for a hearing at the time the same is assigned for-trial, and it appearing to the court that there 'has been no service of the same since the issuing of the writ of certiorari, the acknowledgment of service being prior to the issuing of the writ of certiorari, and it further appearing to the court that the petition and writ of certiorari was not served upon the respondent, Judge C. L. Pettigrew, until March 26, 1923, which was during the March term, 1923, of this court and too late to require the respondent to make answer to the certiorari as provided in the Acts of 1918, p. 124, upon motion of counsel for defendant in certiorari it is considered, ordered, and adjudged by the court that the certiorari be and is hereby dismissed for failure to serve the same as provided by law,” etc.
   Luke, J.

1. This case is here to review the judgment of the judge of the superior court in dismissing a writ of certiorari upon the ground that it had not been properly served. The court properly dismissed the certiorari. See Bass v. Milledgeville, 121 Ga. 152 (48 S. E. 919), and eases there cited.

2. It being clearly apparent that the bill of exceptions was prosecuted in this court for delay only, the statutory damages of ten per cent. (Civil Code of 1910, § 6213) are awarded to the defendant in error.

Judgment affirmed, with damages.

Broyles, G. J., and Bloodworth, J., concur.

The acknowledgment of service referred to above was made by counsel for the defendant in certiorari on the fifth day after the sanction of the writ, and was as follows: “Due and legal notice of the sanction of the writ of certiorari in the foregoing case, and of the time and place of hearing, acknowledged; all other or further notice and service waived. This the 10th day of February, 1923.” The writ of certiorari was issued February 13, 1923, and was returnable to the term of the superior court to be held on the first Monday in March, 1923. The judge of the superior court passed an order on March 29, 1923, as follows: “It appearing to the court upon, the call of the above-stated case that the judge of the municipal court to whom said writ of certiorari was directed has not answered the same, it is on motion of plaintiff ordered by the court that said judge answer said petition for certiorari and have the same filed in the office of the clerk, of the superior court by the'16th day of April, 1923.” An acknowledgment of service of this order was made by the judge of the municipal court on March 29. Next in the record is the following statement of the judge of the municipal court: “The above writ of certiorari was handed me on the 26th day of March, 1923, and on this day was my first knowledge of the writ. March 30th, 1923. C. L. Pettigrew, Judge M. C. of Atlanta.” The statute referred to in the judgment of the judge of the superior court (Acts of 1918, p. 124) amends section 5195 of the Civil Code (1910), so as to make the section read as follows: “The answer to the writ of certiorari shall be filed in office five days before the first day of the term to which it is returnable, unless further time is given, and shall reply specifically to the allegations in the petition.” It was contended by counsel for the plaintiff in error that the failure to serve the judge of the municipal court was cured by the order of the judge of the superior court allowing him until April 16 to file his answer, and that “the acknowledgment of service of the sanction, and the other recitations set out, waived.the fact that the writ had not issued and the petition had not been filed at the time of the service of the same.” Counsel for the defendant in error cited: Singer Sewing Machine Go. v. Dacus, 22 Ga. App. 297, and cases there cited. See Civil Code (1910), §§ 5189-90.

A. S. Johnson, for plaintiff in error.

Frank P. Stochion, Morris Macks, contra.