author: Per Curiam.

text:
    15295.
    MORRIS, trustee, v. ROBINSON.
    The trustee in bankruptcy was not estopped from bringing an action of trover for the automobile in question by the judgment in the creditor’s action to recover it for the use of the trustee. The creditor had no right to maintain the suit, and it was a nullity.
    The court erred in sustaining the plea of res judicata.
    Decided December 11, 1924.
    Trover; from Fulton superior court—Judge Humphries. November 8, 1923.
    Application for certiorari was denied by the Supreme Court.

      M. G. Few, IF. G. Grant, for plaintiff.
    , E. Smythe Gambrell, Underwood, Pomeroy & Haas, for defendant.
   Per Curiam.

J. Hill Morris, as trustee of the estate of W. W. Clark, bankrupt, brought an action in trover against W. T. Robinson to recover a certain automobile alleged to be the property of said Morris as trustee of the bankrupt. The defendant filed' a plea of res judicata. Upon a hearing of the issue raised by this plea the following facts were agreed upon and submitted to the judge: “Turnell Trading Company, a creditor of the bankrupt, W. W. Clark, during the administration of said bankruptcy, filed a petition with Howell Cobb, referee in bankruptcy, who had charge of the administration of this particular bankruptcy case, seeking to recover from W. T. Robinson (the present defendant), for the use of the trustee in bankruptcy, the Oldsmobile automobile’ in question, on the ground that the same had been preferentially transferred for the purpose of hindering other creditors. Upon the hearing of said petition, after a rule nisi issued by the referee, many witnesses testified as to the transaction. The trustee was present at the hearing, as well as all the creditors, and -no one interposed any objections to the proceedings being brought in the name of the particular creditor. When the referee’s decision upon the merits was adverse to the creditor and the rule nisi was dismissed an appeal was taken to Judge Sibley of the district court of the United States for the northern district of Georgia, where the finding of the' referee was affirmed. The trustee of the bankrupt, through M. C. Few, Esq., the same attorney who had represented the petitioning creditor, afterwards filed the present petition in trover for the same automobile, and the defendant filed a plea of res judicata. The defendant introduced in evidence the following judgment of the referee in bankruptcy upon the said rule nisi: ‘In the District Court of the United States for the Northern District of Georgia. Eastern Division. In re W. W. Clark, bankrupt. Turnell Trading Company, a creditor of the above bankrupt estate, filed a petition to recover for the trustee a certain automobile alleged to have been transferred by the bankrupt to W. T. Bobinson, of Atlanta, Georgia, in satisfaction of a pre-existing debt, within a few days before bankruptcy; that the transfer was made as aforesaid in contemplation of bankruptcy, with intent to prefer said Bobinson to his other creditors; that Bobinson had knowledge of the insolvent condition of Clark at the time of the transfer of said automobile, and that said Clark and Bobinson were in collusion in regard to the transaction. A rule nisi was issued to W. T. Bobinson, requiring him to show cause why he should not deliver said automobile to the trustee in bankruptcy, to be administered along with the balance of the said bankrupt estate. Bobinson filed a response setting up the fact that Clark had transferred the automobile in question to him in August, 1920, some six months before the bankruptcy proceedings were commenced, and he, Bobinson, had allowed Clark to keep the car in his, Clark’s, possession to sell for Bobinson; that Saturday, Jamrary 8, 1921, he came to Madison and saw Clark riding in the car, that Clark was evidently making no effort to sell it, and that it would be to his interest to take the car back to Atlanta with him; this he did Monday, January 10, 1921. Clark filed his voluntary petition in bankruptcy. Now, after hearing the evidence, it is ordered that said rule nisi be and the same is hereby dismissed. Dated at Athens, Ga. This the 29th day of June, 1921. Howell Cobb, Beferee in bankruptcy.”’ The defendant also introduced in evidence the following judgment of the district court of the United States for the northern district of Georgia, affirming the referee’s finding on-said rule nisi: “In the matter of W. W. Clark, bankrupt, No. 1005, in bankruptcy. Petition of Turnell Trading Co. No question has been raised and no opinion is expressed on the right of creditors to maintain this petition, or as to its binding effect upon the trustee. I greatly doubt whether the transaction set up in Bobinson’s answer and testified to by him is valid against the recording laws of Georgia, but the petition in the case attacks it only on the grounds (1) that it was voidable preference, and (2-1 that it was a transfer made to hinder, delay, and defraud creditors. These issues were tried before the referee, and upon sufficient evidence he held that the preference, though originally voidable, occurred more than four months prior to bankruptcy, and for this reason could not be avoided, and that, though a preference, it was made in good faith so far as a purpose to hinder, delay, and defraud other creditors was concerned. These findings are supported by evidence and will not be interfered with. Complaint is made that the referee made no finding concerning the Overland (another) automobile. The title is disclaimed by Eobinson to that, and the omission to make a finding does not seem to be of any practical importance. The referee’s finding is confirmed. This October 20th, 1921. Saml. H. Sibley, U. S. Judge.”

The judge of the superior court then passed the following order: “The above matter, by special agreement of the parties hereto, having come on for the hearing of the plea of res judicata filed hereto, it is ordered and adjudged that said plea of res judicata be sustained, and that defendant herein have final judgment in this action of trover. Cost to be assessed against the plaintiff. This the 8th day of November, 1923. John D. Humphries, Judge Superior Court.” To this order the plaintiff excepted.

The evidence offered to sustain the plea of res judicata does not establish the right of the creditor of the bankrupt estate to maintain the suit in his name for the use of the trustee in bankruptcy against Eobinson. In fact the evidence shows that the creditor had no such right, and that the suit was a nullity. (Judge Sibley in his opinion raised this question, and said that he did not pass upon it.) The decision in that case, therefore, was not binding on the trustee, and does not estop him from bringing an action of trover in his own name to recover the automobile.

Judgment reversed.

Broyles, G. J., and Lulce and Bloodworth, JJ.j concur.


source: Caselaw Access Project

author: Per Curiam. Luke, J.,

license: Public Domain

text:
    15790.
    CITIZENS AND SOUTHERN BANK v. PONSELL.
    The petition in this ease, filed September 26, 1923, by which a depositor sought to recover from the bank the amount of a deposit paid out on forged checks in May, 1920, stated a cause of action; and the court did not err in overruling the demurrer.
    Decided December 11, 1924.
    Complaint; from city court of Savannah—Judge Rourke. June 2, 1924. ■
    The demurrer was on the following grounds: (1) No cause of action is set forth. (2) The petition shows that the petitioner received a statement of her account and the alleged forged checks more than sixty days before she notified the defendant that the checks were forged. (3) The petition shows that the petitioner deliberately refrained from notifying the defendant that the checks against her account were forgeries for more than three years after she came into possession of the checks and recognized them as forgeries. (4) The petition fáils to set forth any fact justifying the failure of the petitioner to notify the defendant that the checks were forgeries.

      Hitch, Denmark & Lovett, for plaintiff in error,
    cited: Banking Act of 1919, art. 19, sec. 44 (Ga. L. 1919, p. 209; Park’s Ann. Code Supp. (1922), vol. 8, § 2280(rr)); Words & Phr. 3117; 17 Ill. 253-4; 1 Pac. 271; 9 Enc. Pl. & Pr. 684; 7 Corp. Jur. 687; 132 Mass. 156, 158; 81 Ga. 597; 117 U. S. 96.

      Farr & Powell, IK II. Bedgoocl, contra,
    cited: Civil Code (1910), § 3496; 128 Ga. 577, 580; 12 Ga. App. 488; 126 Ga. 136; 52 Ga. 494; 13 Ga. App. 793; 85 Ga. 293; 156 Ga. 65; 17 Ga. App. 572; 114 Ga. 683; 81 Ga. 600 (distinguished); 117 U. S. 96 (distinguished); Act of 1919, supra.
   Per Curiam.

The petition of Mrs. D. B. Ponsell against the Citizens and Southern Bank is substantially as follows: On May 7, 1920, Mrs. Ponsell deposited $1500 to her credit in the defendant bank. From May 8 to May 26, 1920, the bank paid out her entire deposit on forged checks. She received no notice of the status of her account, and knew nothing of it, “until, by the merest accident,” in or about the latter part of August or the first part of September, 1920, she discovered for the first time, “while looking through some old papers,” the statement of her account with the bank, together with the checks. “To her counsel only did she make known the fact of such forged checks against her said account some two or three months ago.” (The petition was filed September 26, 1923.) The reason she did not immediately notify the bank of such forgeries after the discovery of said checks in the latter part of August or the first part of September, 1920, was that her husband, who had forged the checks to pay his individual indebtedness, was continuously drunk, and had repeatedly threatened her life and the lives of her children, and she was afraid that he would carry out his threats if she exposed his forgeries. Only after the husband had abandoned her did she think of making demand for her money. On September 6, 1923, she personally demanded her said deposit, and the defendant refused payment. Plaintiff never cheeked against her account, nor did she ever authorize any one else to sign her name to any cheek, draft, or order for the payment of money out of her account. JETeld: The demurrer to the petition was properly overruled.

Judgment affirmed.

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

Luke, J.,

dissenting. It appearing from the petition that the depositor failed to notify the bank for approximately two years and nine months after she knew that the deposit sued for had been drawn out by her husband on checks 'forged by him, her long silence, in my opinion, estopped her from recovering the amount of such deposit from the bank, and the defendant’s general demurrer to the petition was good. See Leather Manufacturers’ National Bank v. Morgan, 117 U. S. 122 (29 Law ed. 811, 6 Sup. Ct. 657); McNeely Co. v. Bank of North America, 221 Pa. 588 (70 Atl. 891, 20 L. R. A. (N. S.) 79); and see also, in this connection, Atlanta National Bank v. Burke, 81 Ga. 597 (7 S. E. 738, 2 L. R. A. 96).


author: Bell, J.

text:
    14621.
    Brown v. Atlanta Northern Railway Co.
   Bell, J.

The Supreme Court, on certiorari, having reversed the judgment of this court by which a new trial was ordered solely because of an alleged error in the charge of the court (see Brown v. Atlanta Northern Ry. Co., 31 Ga. App. 429 (2), 120 S. E. 677), that judgment is hereby vacated and the opinion withdrawn in so far as it relates to such alleged error; and the judgment of the trial court overruling the plaintiff’s motion for a new trial stands affirmed.

Decided December 15, 1924.

Damages; from Cobb superior court—Judge Blair. May 5, 1923.

Mozley & Gann, 11. B. Moss, for plaintiff.

Colquitt & Conyers, John T. Dorsey, for defendant.

Judgment affirmed.

Jenldns, P. J., amd Stephens, J., concur.


author: .Jenkins, P. J.

text:
    15210.
    Standard Growers Exchange v. Harris & Son.
   .Jenkins, P. J.

1. “No supplemental brief shall be filed in any case without special leave of the court.” Rule 15, Rules Court of Appeals (1 Ga. App. XIII). Where in its original brief, filed before argument, the plaintiff in error expressly abandons and withdraws “from the consideration of the court” certain specified grounds of the motion for new trial, and the cause has been argued by counsel on both sides both orally and in the original and reply briefs upon the basis of such abandonment, and where after five weeks since the oral argument the plaintiff in error, without special leave of the court, files in the clerk’s office what is designated as'a “supplemental brief,” in which it is requested that the previously abandoned grounds be reinstated and considered, for the sole reason assigned that at the time of the abandonment certain decisions had been overlooked, and where the defendant in error objects to the consideration of such abandoned grounds and such brief, such grounds and the brief so filed can not be considered. See Napier v. Burkett, 113 Ga. 607 (1, 2), 609 (38 S. E. 941); Hall v. Gilmer, 123 Ga. 173 (1) (51 S. E. 307); Sumner v. Sumner, 121 Ga. 1 (1) (48 S. E. 727); Hardee v. Griner, 80 Ga. 559 (1), 561 (7 S. E. 102). Moreover, the cause having- been argued both orally and by-briefs on the basis of the abandpnment, a consideration at this time of the abandoned grounds would render proper a reopening of the case for new oral or written argument upon motion for good cause assigned, and there is no such motion.

2. Under the answers of the Supreme Court to questions determining the law of this case, certified to it by this court, the verdict for the plaintiffs was authorized under their evidence; nor was there error in the instructions of the trial judge to which exceptions are taken. Standard Growers Exchange v. Harris & Son, 159 Ga. 173 (124 S. E. 884).

3. While the testimony for the plaintiffs that the tendered peaches “complied ivith this contract” was inadmissible, .as a conclusion of the witness, its admission, under the contentions of the parties and other evidence of the witness, can not be taken as likely to have prejudiced the defendant’s rights before the jury. The plaintiff sellers neither contended nor testified that the peaches were absolutely perfect and entirely free from worms, but contended that the percentage affected with worms was not so excessive as to affect the merehantableness of the fruit at the markets specified ip the contract. Since the witness made clear to tlie jury by other positive testimony, reciting facts, what was meant by his conclusion that the. peaches “complied with the contract,” they were not misled by the conclusion, which, had it stood alone, might be deemed harmful error. See Shedden v. Stiles, 121 Ga. 637, 639 (3) (49 S. E. 719); Cen. Ry. Co. v. Butler Marble Co., 8 Ga. App. 1 (8 a) (68 S. E. 775); Small v. Wilson, 20 Ga. App. 674 (5) 681 (93 S. E. 518); Gales v. State, 14 Ga. App. 450 (2) (81 S. E. 364).

Decided December 15, 1924.

Action for breach of contract; from city court of 'Houston county —Judge Eiley. November 19, 1923.

Jones, Parle & Johnston, for plaintiff in error.

Duncan & Nunn, contra.

4. The trial judge did not err in overruling the defendant’s motion for new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: ■Jenkins, P. J.

text:
    15322.
    HENDERSON LUMBER COMPANY v. CHATHAM BANK & TRUST COMPANY.
    Although the notes sued on by the bank as transferee were payable to the person individually who as president of the defendant corporation ’ signed them in the corporate name, they were also signed in the name of the corporation by its secretary, who so far as appears was a disinterested officer and presumably was acting within his authority, the corporate seal being attached. Since there is nothing presumably to discredit the execution of the notes by the secretary, the transferee bank taking them in due course is protected, in the absence of proved notice to it of their invalidity because of having been given for the benefit of the president • personally.
    Decided December 15, 1924.
    Complaint; from Irwin superior court-—Judge Eve. November 14, 1923.
    The bank sued the Henderson Lumber Company (a corporation) and J. A. J. Henderson on promissory notes made payable to J. A. J. Henderson and indorsed by him to the bank, containing the recital, “Given under my seal,” and signed: “Henderson Lumber Company, by J. A. J. Henderson, President.” “Henderson Lumber Company, by Reason Henderson, Secretary.” The signatures were followed by “(L. S.),” and in the record it is stated that “the seal of the corporation” was attached. In its answer the lumber company, after denying liability, says, it is true that it executed the notes sued on, acting through J. A. J. Henderson, its president, and Season Henderson, its secretary, but that at the time of the execution of the notes the company was not indebted to J. A. J. Henderson in any sum; that the plaintiff knew this, but caused the notes to be executed and to be indorsed and delivered to it in adjustment of indebtedness of J. A. J. Henderson to the plaintiff; that neither J. A. J. Henderson nor Reason Henderson was authorized to execute the notes under the circumstances, and for this reason the notes were not the act of the company and not binding upon it; that the execution of the notes was ultra vires; that the company has no authority under its charter to become surety or guarantor for the debts of its president or of any other person.
    On the trial the court, at the conclusion of the evidence, directed a verdict against the defendants. The Henderson Lumber Company made a motion for a new trial, which was overruled, and the movant excepted.

      H. E. Oxford, Quincey & Bice, for plaintiff in error.

      Lawton & Qunningham, Rogers & Rogers, contra.
   ■Jenkins, P. J.

1. The board of directors is the governing body of a corporation, and as such is vested with the management of its ordinary corporate affairs, such as the corporation itself is authorized to perform under the rights and powers delegated by its charter. The officers appointed by the directors are -clothed with only such powers and authority as are expressly conferred upon them by the charter or the by-laws, or as may be implied by usage and acquiescence. Garmany v. Lawton, 124 Ga. 876 (53 S. E. 669), 14 A. C. J. 81, § 1842. Where the common seal of a corporation is affixed to a contract introduced in evidence, and the signatures of the proper officers thereto are proved, the presumption is that the officers did not exceed their authority. The seal itself is prima facie evidence that it was affixed by proper' authority. Solomon’s Lodge v. Montmollin, 58 Ga. 547; Carr v. Ga. Loan Co., 108 Ga. 757 (33 S. E. 190); Dodge v. American Freehold Land Mortgage Co., 109 Ga. 394 (34 S. E. 672); 14 A. C. J. 396, § 2250. There is a recognized distinction, however, between a lack of authority on the part of the particular officers assuming to do a legal act for a corporation, and a lack of authority on the part of the corporation itself to do the act at all; in the former case the act of the officers is unauthorized, in the latter the act of the corporation itself is ultra vires. Ga. Granite Co. v. Miller, 144 Ga. 665 (1). In neither case is the corporation bound. 3 Michie’s Digest, 661 (2). The gratuitous signing away of the corporation’s credit •by giving its note for the benefit of another belongs to the latter class. The rule that “a promissory note without consideration, executed in the name of a corporation by one of its officers, and payable to such officer individually, is void as against the corporation,” even as against a bona fide holder for value (Luden v. Enterprise Lumber Co., 146 Ga. 284 (1), 91 S. E. 102, L. R. A. 1917C, 485; Capital City Brick Co. v. Jackson, 2 Ga. App. 771, 59 S. E. 92), is not based upon the theory that such an officer may not be in fact authorized to bind the corporation by the execution of its note given for a proper purpose, but rests upon the theory that none of its officers is or can be empowered to gratuitously pledge the assets of the corporation, and that one taking such a note is bound to take cognizance that the agent of the corporation, in thus seeking to bind the corporation, might have been acting not in its interest and for its benefit, but for the benefit of himself. The fact that the president of the corporation in executing such a note to himself attaches thereto* the corporate seal, while indicating a general official authority to act for the company in the execution of such an instrument, does not remove the suspicion that in thus dealing with himself he might have been exceeding the powers of the corporation itself by seeking to use its credit for the personal benefit of another.

2. But where the note is executed by the signature of a disinterested officer of the corporation, such as presumptively appears to have been authorized to bind it, the mere fact that it also bears the signature of the official who is the payee would not operate to destroy the presumption in favor of the regularity of the transaction. Frazier v. Swain, 147 Ga. 654 (1) (95 S. E. 211). The seal affixed to the instrument is to be taken not as that of the individuals, but as that of the corporation itself (Acme Brewing Co. v. Cen. R. Co., 115 Ga. 494, 499 (2), 42 S. E. 8); and, being attached, any officer signing the instrument to whom the presence of the seal could impute authority is presumed to have been acting within the scope of his official authority. Since there is nothing to presumably discredit the- execution of the note by the secretary, the transferee bank taking the negotiable instrument in due course is protected, in the absence of any proved notice had by it of the note’s invalidity, and the trial judge did not err in directing a verdict in the transferee’s favor. This is true without reference to the other contentions also relied upon.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jenkins, P. J.

text:
    15333.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. BURTON.
    1. Tlie evidence as to the collision between the automobile driven by the plaintiff and the rear end of the freight-train authorized a verdict in favor of the plaintiff.
    2. The court did not err in refusing to give to the jury the instruction requested by the railway company as to the meaning of the provision of the motor-vehicle act of 1921 which requires the driver of the vehicle to have it “at all times . . under immediate control” on approaching or traversing a curve or railroad-crossing.
    3. It was error to refuse a request to charge to the effect that if the jury believed that the defendant and the driver were negligent to an equal extent, the plaintiff could not recover. '
    Decided December 15, 1924.
    Action for damages; from city court of Americus—Judge Martin presiding. December 29, 1923.

      11. L. Maynard, H. A. Wilkinson, for plaintiff in error.

      J. A. Eicon, contra.
   Jenkins, P. J.

This was an action for damages against a railway company for injuries alleged to have-been received by the driver of an automobile, occasioned by a collision with the rear end of a freight-train at a public crossing within the limits of an incorporated city. The evidence was in conflict upon almost all of the material issues in the case, including the question whether the signals were given by the operatives of the train on approaching the crossing, as required by law. The verdict for the plaintiff, while not demanded, was fully authorized.

The act of 1921 regulating the use of automobiles and other vehicles provides that, “Upon approaching any . . railroad crossing, . . the operator of a motor-vehicle or motorcycle shall at all times have said vehicle under immediate control, and shall not operate said vehicle at a greater speed than ten miles per hour.” Ga. L. 1921, pp. 255, 256 (sec. 2). The defendant requested the court to charge the jury as follows: “I charge you further, the word ‘immediate’ as used in the autpmobile act of 1921, which requires an operator of a motor-vehicle, upon approaching or traversing a curve or railroad crossing, to have the vehicle at all times under immediate control, means ‘present’ or ‘instant’ control; that the words, ‘shall at all times have such vehicle under immediate control,’ mean that the operator of such vehicle shall run the same, when approaching or traversing a railroad crossing, at such speed as would enable him to bring the vehicle to a stop within vision; and this without reference to whether the weather was clear or raining; and in no event shall it be run at a speed in excess of ten miles per hour.” The court did not give the charge requested, but read to the jury the provisions of the statute above quoted, and further instructed them as follows: “You will then inquire into the conditions under which the plaintiff was driving this automobile on this occasion, and ascertain and settle as a question of fact whether in approaching this crossing at the time in question, and in undertaking to traverse this crossing on this occasion, she was in compliance -with the regulations prescribed by the law relative to the operation of motor-vehicles on the highways and streets of this State. If she was not acting in compliance with these regulations, ■—that is, if she did not have this automobile under immediate control and was running beyond the mileage as specified in the law, of course it would be your duty to find that she was negligent per se in operating that automobile on that occasion. The words ‘immediate control,’ as used in the motor-vehicle law, the word ‘control’ means ‘check, to restrain;’ the word ‘immediate’ means ‘present, instant.’ The act requires that of the operator of a motor-vehicle upon approaching and traversing a sharp curve, railroad crossing, etc.; that is, that the operator of such motor-vehicle shall have such vehicle under immediate control,—that the operator shall be able to stop the same within a certain distance, as a person with a like car and under similar conditions, and having the car running at a rate of speed not greater than that prescribed by the statute, could stop the ear.” To this instruction no exception was taken, but complaint is confined to the failure to charge. Movant contends that “the omitted last portion of the charge requested, above referred to, was material, in view of the evidence of the plaintiff’s witnesses that the engine and cars were within the automobile driver’s range of vision twenty yards from the spot of the injury, and that the automobile could be and was stopped within a distance of four feet after the brakes were applied.”

The instruction given was better adjusted to the law and the evidence than the charge requested. The provision of law requiring the operator of an automobile, upon approaching such a crossing, to have the vehicle at all times under immediate control does not necessarily and as a matter of law include- the duty of so operating the car as to enable the driver to stop it “within vision” ■—assuming this expression to mean a constant ability to stop the car before reaching the crossing, after an approaching train may have come within the driver’s range of vision. An inability to do so might under given circumstances constitute negligence;'while, on the other hand, such a situation might not properly be chargeable to the mechanical condition of the car, the inattention or lack of skill of the driver, or an excessive speed at which it was being driven, but might be chargeable to the negligent manner of approach of the train to the crossing. The term used by the statute can not imply the constant ability to bring the car to a full stop instanter. It must mean, as the judge in effect charged, that, in approaching such a crossing, the operator of an automobile shall have and keep the machine under such constant control as would enable him instantly to govern its movements, including the power to stop within a distance in which such a vehicle, in good mechanical condition, driven by a reasonably skilful driver, and traveling at a lawful rate of speed, could be stopped. In the instant case the defense actually made by the railway company does not seem to rest to any large extent, if at all, upon the inability of the plaintiff to control her car at the time and place of the injury, since it is urged in the motion that it appears from the evidence to have been stopped within four feet after the brakes were applied; but the defense consists rather in the alleged negligence of the plaintiff in failing, to control inore promptly a' car which was being driven in a manner which made it subject to immediate control.

Exception is taken to the refusal of the court to charge as follows: “If you believe that the defendant was negligent to some extent, and you further believe that Mrs. Burton, the driver of the automobile, was negligent to an equal or greater extent, the plaintiff can not recover in this case, and your verdict should be for the defendant.” The court on its own motion, at one place in the charge, did instruct the jury that, “even though you should find the defendant company negligent, yet if the plaintiff, by the use of ordinary care, could have prevented the injury to herself, she could not recover,” and in another connection instructed them that, “if her negligence exceeded that of the defendant, she could not recover.” The exception is to the refusal to charge as above indicated.

When the plea sets up contributory negligence as a ground of defense, and the evidence is such as might justify it, or when, even without such a plea, the evidence is such as might indicate it, and a proper request to charge on that principle is made, it is the duty of the court to instruct the jury accordingly. Southern Ry. Co. v. Weatherby, 20 Ga. App. 399 (2) (93 S. E. 31).

The rule of law which provides that, if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover (Civil Code of 1910, § 4426), is a different principle from what is known as the doctrine of contributory or comparative negligence. In the one case the failure of the plaintiff to exercise ordinary care to avoid the consequences of defendant’s negligence as it had or should have become apparent precludes a recovery; while under the doctrine of contributory or comparative negligence a plaintiff can recover partial damages for injuries caused by the negligence of the defendant railway company notwithstanding his own fault might in some less degree have contributed thereto. Accordingly, the giving in charge of the principle relative to the inability of the plaintiff to recover in case it should appear that she herself failed to exercise ordinary care did not relieve the .court of its duty to charge upon the rule of comparative negligence.

“In the trial of an action brought to recover damages against a railroad company for injuries sustained by the running and operation of a train of cars, it was error to charge in such manner as to convey to the jury the impression that if they should believe that both the company and the person injured were equally negligent, the plaintiff could recover.” Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842 (3) (39 S. E. 551, 61 L. R. A. 513). In such a case, “if both parties are equally in the wrong, neither can or ought to maintain an action against the other.” Southern Ry. Co. v. Watson, 104 Ga. 243, 247 (2) (30 S. E. 818). The pressure of the case resting largely upon the contentions of each party relative to the alleged negligence of the other, it was error to refuse the written request to charge, which correctly set forth the rulé chat the plaintiff could not recover in the event the jury should find that the negligence of the plaintiff was either equal to or exceeded that of the defendant. Central of Ga. Ry. Co. v. McKey, 13 Ga. App. 477 (4) (79 S. E. 378). See also Macon & Western R. Co. v. Winn, 19 Ga. 440, 445; Christian v. Macon Ry. & Lt. Co., 120 Ga. 314 (1) (47 S. E. 923); Wrightsville R. Co. v. Gornto, 129 Ga. 204 (8) (58 S. E. 769); Pickett v. Central of Ga. Ry. Co., 138 Ga. 177 (3) (74 S. E. 1027, Ann. Cas. 1913C, 1380); Macon Ry. & Lt. Co. v. Carger, 4 Ga. App. 477 (2) (61 S. E. 882); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 418 (91 S. E. 517). Eor this reason only a new trial should have been granted.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15345.
    HOOD v. DUREN.
    1. While the contract of an infant is declared by the code to be “void except for necessaries,” it is the well-settled rule that such a contract is “not void, but voidable, at the election of the infant, when arriving at full age.” Strain V. Wright, 7 Ga. 568 (1) ; Bell v. Swainsboro Fertilizer Go., 12 Ga. App. 81 (76 S. E. 756), and eases cited; Clyde v. Sieger Piano Mfg. Go., 22 Ga. App. 192 (95 S. E. 734). “The exemption of the infant is a personal privilege” (Civil Code of 1910, § 4234), and his contract is subject to ratification by his retention or enjoyment, after attaining majority, of the consideration received. Civil Code, § 4233.
    2. “Presumptions of law are sometimes conclusive, and an averment to the contrary will not be allowed. These are termed estoppels, and are not generally favored. Among these are . . . admissions upon which other parties have acted, either to their own injury or the benefit of the person making the admissions; and similar eases where it would be more unjust and productive of more evil to hear the truth than to forbear the investigation.” Civil Code, § 5736. “What one induces another to regard as true is to be treated as the truth between them, if tile party who acts has been misled to his damage by the conduct or statements of the other.” American Freehold Land Mortgage Co. v. Walker, 119 Ga. 341 (3) (46 S. E. 426). Such estoppels in pais or equitable estoppels, which are primarily negative in their operation against the party making the statement or admission, rather than creative of any new right in the opposite party (Parks v. Simpson, 124 Ga. 523, 524, 52 S. E. 616), under the practice in this State may be asserted in proceedings at law as well as those of equitable nature, and in courts having jurisdiction only of the former. See Walker v. Bill-

      yer, 124 Ga. 857 (53 S. E. 313); Bussell V. Turner, 14 Ga. App. 344, 349, 350 (80 S. E. 731); Arnold v. Empire Ins. Co., 3 Ga. App. 685 (4), 707 (60 S. E. 470).
    3. A defendant is estopped from exercising his privilege of avoiding a fair and reasonable contract upon the ground of his minority at the time the agreement was made, where it appears that he has received, enjoyed, and consumed its irrestorable benefits; and where it appears that the plaintiff, dealing in good faith, was induced to act to his injury by reason of the false and fraudulent representation of the defendant with respect to his apparent majority; and that, in view of all the surrounding facts and circumstances, the plaintiff was justified in accepting such representation as true, and was free from fault or negligence on his own part, such as a failure to use all ready means of ascertaining the truth touching the defendant’s apparent majority.
    4. On the disputed issue as to whether the defendant was twenty-one years of age, the plaintiff offered to show, by the testimony of himself and of another witness, the physical appearance of the defendant at the time the note sued on was executed, that they had known the defendant four or five years, that he had been married and living at the head of his family for about four years prior to the execution of the note, that his physical appearance was that of a man well over twenty-one years old, and that, basing their conclusion on these facts, he was in their opinion then over twenty-one years of age. This evidence, which included the facts from which the opinion was formed, was admissible; the weight and probative value being for the jury; and the coui't erred in excluding it. Hubbard v. Rutherford, 148 Ga. 238 (1) (96 S. E. 327) ; Dime Mfg. Go. v, Bieks, 28 Ga. App. 160 (1) (110 S. E. 454).
    Decided December 15, 1924.
    Complaint; from city court of Thomasville—Judge Hammond. January 17, 1924.

      Clifford E. Hay, for plaintiff.

      W. W. Alexander, Branch & Snow, for defendant.
   Jenkins, P. J.

Something might be said in elaboration of the principle of law contained in the 3d division of the syllabus. It has been laid down as a general rule that “the doctrine of estoppel has no application to infants.” 31 Corpus Juris, 1005, § 33. It accordingly appears that in some jurisdictions - the doctrine of estoppel is pais is not permitted to bind minors to an engagement, even though it may appear that the other party to the agreement has been induced to act to his injury by reason of the fraudulent conduct of the minor with reference thereto. There are decisions in jurisdictions in which this general rule is strictly observed which-go so far as to apply it even where all the proper elements of estoppel are accompanied by false and fraudulent statements of the minor relating to the fact of minority itself. It appears, on the other hand, that the courts of numerous jurisdictions have not strictly adhered to the general rule prohibiting the application of the doctrine of estoppel to infants, and from many of these have come rulings to the effect that false and fraudulent misrepresentations by the infant touching his majority will estop him from setting up his disability, where the other party to the contract has acted in good faith to his injury and without fault or negligence on his part. LaRosa v. Nichols, 92 N. J. L. 375 (105 Atl. 201; 6 A. L. R. 412); Commander v. Brazile, 88 Miss. 668 (41 So. 497, 9 L. R. A. (N. S.) 1117); Ferguson v. Bobo, 54 Miss. 121, 127; Looney v. Elkhorn Land Co., 195 Ky. 198 (242 S. W. 27); County Board of Education v. Hensley, 147 Ky. 441 (144 S. W. 63, 42 L. R. A. (N. S.) 643); Harseim v. Cohen (Tex. Civ. App,), 25 S. W. 977; Kilgore v. Jordan, 17 Tex. 341, 348; Klinck v. Reeder, 107 Neb. 342 (185 N. W. 1000); Cobbey v. Buchanan, 48 Neb. 391 (67 N. W. 176); Stallard v. Sutherland, 131 Va. 316 (109 S. E. 568, 18 A. L. R. 516); Lewis v. VanCleve, 302 Ill. 413 (134 N. E. 804); Davidson v. Young, 38 Ill. 145; Prouty v. Edgar, 6 Iowa, 853; Adams v. Fite, 3 Baxt. (Tenn.) 69; Goodman v. Winter, 64 Ala. 410, 437 (38 Am. Rep. 13); Guidry v. Davis, 6 La. Ann. 90.

In this State, whatever diversity of rulings may be found elsewhere, it has been uniformly recognized that the doctrine of estoppel is not altogether inapplicable to infants; but that it may in a proper case be given effect against them. Whittington v. Wright, 9 Ga. 23 (4), 28; Irwin v. Morell, Dudley, 2 Ga. Dec. 72; Larkin v. City of Darien, 69 Ga. 727 (2), 728; Jones v. Cooner, 137 Ga. 681, 683 (74 S. E. 51); Royal v. Grant, 5 Ga. App. 643 (2), 646 (63 S. E. 708). In Harris v. Collins, 75 Ga. 97 (2), 106, it was held that “the law places persons non sui juris under disabilities for the purpose of protecting their rights, but not to enable them to invade or assail the rights of others;” and the celebrated dictum of Lord Mansfield in Zouch ex dem. Abbott v. Parsons, 3 Burr. 1794 (97 Eng. Reprint, 1103), that the infant’s privilege “is given as a shield, and not as a sword,” was approved. See also Strain v. Wright, 7 Ga. 568, 572. Thus, while none of the decisions of our own courts seem to have dealt with the doctrine of estoppel as applied to infants when the fraud practiced related to the fact of.infancy itself, as it does in the instant case, yet, since our Supreme Court has uniformly recognized the general principle that the doctrine can be applied to minors, it would seem that, in a case like the instant one, the reasoning of those courts which recognize the same general' rule, and which apply it to a case like this, can with propriety be followed. Thus, a defendant is estopped from exercising his privilege of avoiding a fair and reasonable contract upon the ground of his minority at the time the agreement was made, where it appears that he has received, enjoyed, and consumed its irrestorable benefits, and where it appears that the plaintiff, dealing in good faith, was induced to act to his injury by reason of the false and fraudulent misrepresentation of the defendant with respect to his apparent majority, and that, in view of all the surrounding facts and circumstances, the plaintiff was justified in accepting such representation as true, and was free from fault or negligence on his own part, such as a failure to use all ready means of ascertaining the truth touching the defendant's apparent majority.

The decision in McKamy v. Cooper, 81 Ga. 679 (1), 680 (8 S. E. 312), relied upon by defendant in error as authority to the contrary, appears to be a ruling upon a question of pleading only. In the instant case the amendment setting up the alleged representation of the defendant touching his majority is pleaded solely by way of estoppel, in order to bar the defense set up by the plea. In the McEamy case the amendment “praying equitable relief'' had the effect of converting the original action on the contract into a new and independent action for fraud and deceit. The Supreme Court held that such a new cause of action could not be added by amendment, but held the error to have been harmless, since the trial judge instructed the jury that such misrepresentation on the part of the infant would not authorize the plaintiff to recover in the original action. In other words, though the misrepresentations were improperly pleaded and relied upon as sustaining a new and independent cause of action by way of fraud and deceit, the defendant could not complain, since the error was nullified under the instructions of the court. The doctrine of estoppel was not invoked; and the case does not adjudicate whether or not such misrepresentations might authorize its application in a suit against a minor on a contract otherwise voidable.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    15350.
    Mound City Roofing Tile Company v. Walker.
    Decided December 15, 1924.
   Jenkins, P. J.

1. “In order for tlie holder of a promissory note given for the purchase-price of an article to claim that the maker has waived his right to set up as a defense that the article was defective, it must appear that at the time the note was given the maker had actual knowledge that the article was defective, or that, prior to the giving of the note, he had inspected and examined the article in question, and the defects therein were of such a character as to be patent to the person making the inspection or examination. The rule will not be extended to a case where the maker could have inspected but actually did not inspect or examine the article.” Means v. Subers, 115 Ga. 371, 374 (41 S. E. 633).

2. There is another and different rule to the effect that, “if there is ho express covenant of warranty, the purchaser must exercise caution in detecting defects” (Civil Code, 1910, § 4135); and it has been held that the provisions of code-section 4137, that “partial payment, with knowledge of the defective condition, will not estop the buyer from pleading partial failure of consideration,” apply only in cases of sales under express warranties. Cook v. Finch, 117 Ga. 541, 544 (44 S. E. 95). Thus, “where property is bought under the implied warranty that it is reasonably suited to the uses intended, an acceptance by the purchaser of the property waives all defects which might have been discovered by the exercise of ordinary care and prudence before delivery." Moultrie Repair Co. v. Hill, 120 Ga. 730 (2) (48 S. E. 143); Lunsford v. Malsby, 101 Ga. 39, 41 (28 S. E. 496). But such a duty to inspect, or even an actual inspection, does not preclude the seller from pleading latent defects of which he had no actual knowledge and which were such as. might not have been discovered by the exercise of ordinary care and prudence. Cook v. Finch, supra. Whether the defects were patent, or whether they were such as might by the exercise of ordinary care and prudence have been discovered prior to acceptance, is generally a question for the jury. Kronman v. Roush Produce Co., 3 Ga. App. 152 (2) (59 S. E. 320); Bray v. Southern Iron & Equipment Co., 28 Ga. App. 813 (1 c) (113 S. E. 55). The rule is different where the sale is made in accordance with the terms of an express warranty. North Ga. Milling Co. v. Henderson Elevator Co., 130 Ga. 113 (60 S. E. 258, 24 L. R. A. (N. S.) 235).

3. In the instant case, where the defendant sets up a breach of the implied warranty, the judge of the municipal court, who tried the case without a jury, was authorized to find that the defects were neither - patent nor of such character as should have been discovered prior to acceptance by the exercise of ordinary care and prudence. The evidence was in conflict as to the actual existence of the defects .complained of, but a finding in the defendant’s favor upon that question was authorized, as was a finding- that the resultant damages amounted to as' much or more than the balance of the purchase-price sued for. The judge of the superior court therefore did not err in overruling the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Certiorari; from Fulton superior court—Judge Humphries. December 27, 1923.

Walter B. Brown, for plaintiff.

Brackett & Tindall, for defendant.


text:
    15444, 15445.
    Kiser v. Westbrook; and vice versa.

   Jenkins, P. J.

This was a suit by the holder on a promissory note given by the defendant to a corporation, in pursuance of a written subscription for its corporate stock. The law relating to the special rights of a bona fide holder for value of a negotiable instrument is not invoked, and no such question is involved. The defendant sought to plead: (1) that the promoter of the corporation induced the signing of the stock subscription by orally promising and agreeing that lie would see that the defendant was made president of the corporation, at a named salary; and (2) that the note was without consideration, because the certificate of stock had never been delivered. The court, on demurrer, struck the first ground of defense; and upon the remaining issue made by the plea the jury found in favor of the plaintiff. By the original plea it was alleged that the charter had never been obtained, but this allegation was nullified by amendment. No allegation or contention that the corporation was being illegally operated as such is set forth by the original plea or the amendment. Held:

1. The contention made in the brief of counsel for the plaintiff in error, relative to the testimony going to show that the corporation was operated illegally, is without merit, since no such defense was made by the plea; and it is the general rule that “a defendant is not entitled to the benefit of any defense which should be made by answer and as to which his answer is silent,” Harrell v. Blount, 112 Ga. 711 (2) (38 S. E. 56). While it is true that “a defense not pleaded may be based on evidence admitted without objection, and the court may chai-ge the jury thereon.” (Joseph Liebling Inc. v. Tabb, 30 Ga. App. 38 (2), 116 S. E. 666), still’in this case, if it be assumed that testimony was admitted along the line indicated, the charge of the court was limited to the defense made by the plea, and it does not even appear that any request was made to. charge upon any- ground of defense not covered thereby.

2. “Where promoters- enter into a secret collateral agreement with a person to induce him to subscribe for stock of a corporation to be formed, the breach of such agreement will not release the subscriber from his liability to the corporation.” National Bank of Union Point v. Amoss, 144 Ga. 425 (3) (87 S. E. 406, Ann. Cas. 1917A, 74).

3. “Where a note was given for the purchase-price of certain shares of stock, and there was no. agreement as to when the certificates representing the shares were to be delivered, it will be presumed that it was the intention of the parties that they were to be transferred and delivered on payment of the note. If the seller owned the shares or stood in such position as to be able otherwise to procure them, and was ready to deliver them on demand or on payment of the note, it is no defense to an action on the note that the seller did not tender the certificates prior to the maturity of the note. The fact that the value of the shares had fallen in the meantime does not change the rule.” Prontaut v. Lorick, 17 Ga. App. 495 (4) (87 S. E. 716).

Decided December 15, 1924.

Complaint; from city court of Fairburn—Judge McG-raw presiding. December 14, 1933.

J. F. Golightly, for-Kiser.

Lawrence S. Gamp, contra.

Judgment affirmed; cross-bill of exceptions dismissed.

Stephens and Bell, JJ., concur.


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

text:
    15453.
    ALLEN v. SOUTHERN RAILWAY COMPANY.
   Jenkins, P. J.

1. “The consignee of property delivered by another to a common carrier for shipment is presumed to be the owner, and presumptively a right of action exists in his favor for any injury or damage to the property in transit; but the presumption that the consignee is the owner may be rebutted, and where it appears that the consignee has no general or special property in the goods shipped, and incurs no risk in their being transported, he can not maintain an action ex delicto for the loss of, or for any damage to the property. . . Where the consignor makes a contract with a common carrier for the shipment of goods which belong to. the consignee, the former may recover in assumpsit for a breach of the contract, and the latter may recover for any loss or any damage to the property, and a recovery by either of the full amount of damage caused by the carrier would bar a recovery of such damage by the other. . . There are many cases holding that though the consignee may not be the real owner, if he has a special interest in the property shipped, he may maintain an action for the loss, or for any damage to such property in transit, and in such action may have a recovery of the full value of the property where lost, or full amount of damages to the property where it is damaged. . . ‘The ownership need not be extensive, and an agent, factor, broker, bailee, or other person havingrrights in the property to be protected, may maintain an action, and recover both for himself and the general owner.'" Southern Ry. Co. v. Miko, 136 Ga. 272, 273, 274 (71 S. E. 241). In the instant case, while the consignor had reserved title to the injured property rinder retention-of-title notes, the consignee vendee, having paid to the consignor vendor $200 of the purchase-price of the machinery, of the value of $600 at the time and place of injury, had such a special property and interest as would sustain a right of action against the carrier for its injury. See Civil Code (1910), § 4482; Brown Shoe Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (3) (49 S. E. 839); Emanuel County v. Thompson, 3 Ga. App. 225 (59 S. E. 603). See also Ryals v. Seaboard Air-Line Ry. Co., 158 Ga. 303, 32 Ga. App. 453 (123 S. E. 12, 733). It appears from the record that after the injuries sued for, the property was sold by the consignor vendor “before the court-house door in Monroe county for $410,” in a sale “on the foreclosure of the retention-of-title notes.” While the consignee vendee, under the rule stated, might “recover both for himself and the general owner,” holding in trust for the latter its portion of the recovery, the amount realized by the vendor under its forclosure proceedings would, however, be chargeable against its interest, and should be deducted by the jury from such amount as they might, under the evidence, determine to be the market value of the property at the time and place of injury, if they should find for the plaintiff. No question here arises as to any assignment of the cause of action, or as to any conflicting right or claim by the consignor vendor.

2. The plaintiff consignee sued in tort for the recovery both of an item of expense, amounting to $6, incurred on account of damage to the axle of a locomotive, alleged to have been damaged by the defendant’s negligence as a common carrier while the machinery was in transit loaded on a flat ear, and on account of alleged damage to the property after its arrival at destination and before unloading. The trial court granted a nonsuit, to which the plaintiff excepts. There is no cross-bill of exceptions by the defendant carrier to the order overruling its demurrer to the petition, and no question is raised as to any misjoinder; and that order is the law of the case. The jury being authorized to find, under the presumption against the common carrier, that the axle was broken by its negligence while the property was in transit, it was error as to this item of damage to grant a nonsuit.

(a) “In all cases necessary expenses consequent upon the injury done are a legitimate item in the estimate of damages.” Civil Code (1910), § 4505. It is unnecessary to show that an item of such expenses has been actually paid. It is enough that an actual legal liability therefor has been incurred. Murphey v. Northeastern Construction Co., 31 Ga. App. 715 (3); 17 C. J. 805, 806, 803. In the instant case testimony of the plaintiff that the consignor “charged” the plaintiff “six dollars for repairing the axle,” and that, while this amount was yet unpaid, “I have got to pay him,” was sufficient to authorize a recovery therefor against the defendant.

3. “A warehouseman is a depositary for hire, and is bound only for ordinary diligence.” Civil Code (1910), § 3503. It is the statutory rule in this State that “in all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence.” Civil Code, § 3469. The word “loss,” in this section, has been construed to-mean injury or damage to the goods as well as their- destruction or disappearance. Richmond & Danville R. Co. v. White, 88 Ga. 805, 813 (15 S. E. 802). The State statutory rule as to the burden of proof in bailments is applicable to intrastate shipments such as in the instant case, although, under the ruling of the United States Supreme Court, a different rule prevails as to interstate shipments. Central of Ga. Ry. Co. v. Owens, 28 Ga. App. 140, 142, 143 (110 S. E. 339); Davis v. Pearlman, 29 Ga. App. 12 (1) (113 S. E. 44); So. Ry. Co. v. Prescott, 240 U. S. 362 (36 Sup. Ct. 469, 60 L. ed. 836).

(a) “Where goods are shipped by railway, and arrive at their destination within the usual time required for transportation, and are there deposited by the company in a place of safety and held by them ready to be delivered on demand, their liability as common carriers ceases (unless the custom of the trade is shown to be otherwise as to delivery), and that of warehouseman begins.” Southwestern R. Co. v. Felder, 46 Ga. 434, (1); Civil Code (1910), § 2730; Kight v. Wrightsville R. Co., 127 Ga. 204 (1, 3) (56 S. E. 363). “The carrier, in addition to its compensation for the carriage of goods, has the right to charge for their storage and keeping, as a warehouseman, for whatever time they remain in its custody after reasonable opportunity has been afforded the owner to remove them. . . Where the carrier’s duty ends with the transportation of the ear and its delivery to the customer’, and no further service is embraced in the contract, the carrier, after a reasonable time has been allowed for unloading, is as much entitled to charge for the further use of its ear as it would be for the use of its warehouse;” Miller v. Ga. R. Co., 88 Ga. 563, 572 (15 S. E. 316, 18 L. R. A. 323, 30 Am. St. Rep. 170). Ordinarily, “where a railroad company has transported a carload of goods and notified the consignee of their arrival, the delivery is complete when the agent of the consignee verifies the goods in the car and gives his receipt for the same;” and “where the agent of the consignee removes most of the goods, but leaves some in the car on account of approaching night, and the car is broken open after having been closed and sealed by the agent of the railroad company, and some of the goods stolen therefrom, the railroad company, if liable at all, is liable only for gross neglect, as a gratuitous bailee.” Kenny Co. v. Atlanta & West Point R. Co., 122 Ga. 365 (50 S. E. 132). Where, therefore, freight has been paid, a receipt for the shipment given by the consignee or his agent; and the delivery is completed without any relationship whatever existing between the consignee and' the railroad either as a common carrier or as a warehouseman for compensation, the carrier, by the mere voluntary assistance of its agent in closing or sealing the ear, where no storage or demurrage is charged or chargeable, becomes at the most no more than a gratuitous bailee. But where, even though the duty of the railroad as a' common carrier may have terminated, it expressly or impliedly assumes the duties of a warehouseman in relation to a car in which goods are stored, so that, under the statute or rules of the public-service commission, it becomes entitled to charge storage and demurrage for the use of its ear after the expiration of free time, it is liable, in case of injury to the goods, not for gross neglect as a mere gratuitous bailee, but as a warehouseman for any lack of ordinary care; and in such a case, after proof of the injury, the burden is on the carrier to show proper diligence. Under the particular evidence for the plaintiff in the instant ease, the jury were authorized, though not compelled, to find that the breaking of the axle of the machinery shipped was due to the negligence of the defendant as a common carrier; that the necessity of removing and repairing this axle prevented the plaintiff consignee from promptly removing the goods from the ear before their injury; that the consignee, through his agent employed to unload the freight, paid the freight and receipted for the shipment without knowledge that the previous negligence of the defendant in breaking the axle of the machine would prevent its prompt unloading; that the freight was received for unloading under such a mistake as to the facts; that the railroad, with knowledge of these facts, while the axle was being repaired so that unloading could be practicably effected, permitted the car to remain with the goods thereon on its side-track, without any protest, from December 16 to January 5, and by its freight agent, at the place of destination agreed to look out for the freight so that it would not be damaged by being struck by trains coming on the siding. The jury were thus authorized to find, even if they should have found that liability of the defendant as a common carrier, under the particular facts developed by the plaintiff’s testimony, did not exist, that the defendant was nevertheless a warehouseman for hire. Under this view of the case, the burden being upon the defendant after proof of the injury and damage, it was error to grant a nonsuit. See Savannah & Statesboro Ry. Co. v. First Nat. Bank, 25 Ga. App. 529 (103 S. E. 887).

Decided December 15, 1924.

Rehearing denied Febbuary 11, 1925.

Action for damages; from Monroe superior court—Judge Persons. February 5, 1924.

STATEMENT OE EACTS BY JENKINS, P. J.

The consignee of an engine and boiler, which were shipped mounted on wheels, brought an action in tort against the carrier, for damages on account of the knocking of the machinery from the car on.which it was mounted by the backing of a train of the defendant against the car while it was standing on a side-track at the place of destination, awaiting unloading. One item is claimed as expense incurred in repairing a broken axle, amounting to $6, on account of the defendant’s alleged negligence while the property was “in transit.” The other item for the market value of the machinery, $600, is for the alleged subsequent injury on the sidetrack. No exception is taken to any improper measure of damages. With regard to the title and interest of the plaintilf consignee in the property, the plaintiff testified: that the consignor had retained the title, by retention-of-title notes, but that prior to the injury the plaintiff paid $200 of the purchase-price; that the machinery was worth $600 at the place of destination before it was knocked from the car; and that, while there was some proof that the injury had rendered it worthless, it was shipped by the carrier back to the consignor and repaired, and then sold by the consignor vendor on the retention-title-notes for $410. With reference to the custody of the machinery and the relation of the parties at the time of the injury on the side-track, while the proof showed that the plaintiff’s agent employed to unload the machinery paid the freight and signed a receipt to the defendant carrier, there was evidence to indicate that this was done before it .was discovered that a broken axle of the engine (injured as contended while in transit) would prevent the practicable unloading of the property until the removed axle could be returned to the consignor, repaired, and replaced, so that the machinery could be rolled from the car, in the difficult physical surroundings where the car was placed oar the side-track; that when the injury to the axle was discovered, the unloading was stopped; and that, while awaiting the repair and return of the axle, the machinery either was knocked or fell from the car, and the injury sored for resulted. The plaintiff’s evidence tended to show, that at the place where the car was located and in the condition of the broken axle, the property could have been- unloaded and removed only by taking it across the main track of the railroad, and that this, with the available equipment, would have been difficult, and would have required “a good deal of time,” if not impracticable, and would have blocked “the main line and trains that are passing every few minutes.”

4. The court did not err in excluding a letter offered by the plaintiff, purporting to be signed by a person as “freight-claim adjuster” after the alleged injuries, and containing a statement to the effect that the defendant had caused the fall of the machinery from the ear; there being no evidence to identify the person writing the letter as an authorized agent of the defendant, or showing that it was written in the scope of his duties as such an agent. Torbet v. Cherokee Ins. Co., 141 Ga. 773 (2) (82 S. E. 134); Amicacola Marble Co. v. Coker, 111 Ga. 872 (36 S. E. 950); Wilcox v. Hall, 53 Ga. 635 (4); Atlas Assurance Co. v. Kettles, 144 Ga. 306 (4) (87 S. E. 1).

Judgment reversed;

Stephens and Bell, JJ., concur.

The plaintiff contends, that the axle was broken by negligence while iaa the custody of the defendant as a common carrier, and that siaaee this injury prevented the reaaaoval of the property from the ear before the subsequent injury, the defendant remained liable as common carrier for this later damage. The defendant contends, that, siaaee the car was placed ora the side-track at the place of destination, and the freight paid and receipted for, this was a delivery; and that, even though there was evidence that the freight remained in the car without objection by the defendant, and that the defendant’s freight agent was requested by and promised the plaintiff to look out for the freight by not letting the train crew “hit the ear hard,” but to “back in on it easy if they had to go in on that siding,” the defendant was neither a common carrier nor a warehouseman, but merely a gratuitous bailee, liable only for gross neglect. There was evidence that, after starting to unload the machinery and removing the broken axle, the plaintiff’s employees “put [four] cross-ties under” the machinery, and “set the fire-box down on it so it couldn’t fall off,” but “knocked all of the blocks from under the wheels,” which had been thus braced while in transit. The defendant contends that the removal of these blocks caused the fall of the machinery. There was no eye-witness to the alleged striking of the car on the side-track by a train of the defendant; but a “blundering noise” was heard, and the machinery was found lying on the ground, while a “locomotive was standing on the track.” The trial court directed a nonsuit, on the ground that there was “no evidence to show that the machinery was damaged other than by the breaking of an axle by the defendant 'company, and no evidence to show that the machinery could not have been moved from the flat car of the defendant company with broken axle.” To this judgment the plaintiff excepted.

Claude Christopher, for plaintiff.

Harris, Harris & Popper, Samuel Rutherford, for defendant.

ON MOTION EOR REHEARING.

Jenkins, P. J.

1. The 1st division of the original syllabus has been slightly amended so as to avoid any possible construction that this court intended to rule that the plaintiff, as owner of a special property and interest in the subject-matter, if he should recover under the rules stated “both for himself and the general owner,” could recover the full market value at the time and place of injury, without any deduction for whatever amount would be chargeable against the consignor-vendor’s interest. Such interest of the holder of the retention-of-title notes would'be chargeable with such amount as the holder realized upon the debt in the public sale of the property under the notes; and from any amount which the jury might find for the jflaintiff, as the market value of the interests both of himself and of the vendor, there should be deducted the amount which may be shown to have been received by the vendor at such public sale.

2. In its motion for rehearing the defendant carrier contends, that, in the ruling in the second division of the syllabus, to the effect that the trial court erred in granting a nonsuit as to the damage claimed against the carrier for injuring the machinery while in transit, this court overlooked specified portions of the evidence demanding a verdict for the defendant. The evidence referred to is that of the plaintiff’s witness, Greeley Gresham, as follows: When “we started to roll it (referring to the boiler in question) the axle broke, . . and there was part of the axle looked like a fresh break. . . It would have taken a pretty heavy blow to break the axle the way it was broken. I don’t think it could have been broken with a hammer.” The defendant contends that the presumption against a common carrier on account of the running and operation of its trains “does not exist where the plaintiff’s evidence shows conclusively that the goods were receipted for in good order, and that it was a physical impossibility for the damage to have resulted through any negligence of the carrier.” It is further contended “that the plaintiff’s evidence showed that the break in the axle was an old break, and that portion which was a fresh break might have easily been caused by knocking the blocks out from the boiler with a hammer and letting the axle down suddenly;” or that the “falling apart of the axle might have been caused by the proper movement of the train, for which the defendant would not have been liable;” and that it was necessary for the plaintiff to negative both of these theories. The defendant is apparently in error as to the giving of a receipt for the goods “in good order” by the plaintiff consignee or his agent. The only reference to a receipt in the record is to documentary evidence, as follows: “One freight bill for $54.00, and payment receipted for by J. H. Burch,, Agent of Southern Railway Company, on December 16, 1922. Consignee A. TI. Allen, Dames Ferry, Ga. Shipped from Inman Yards, Ga., by Woodruff Machinery Mfg. Co., Atlanta, Ga. Weight 20,000.” The following notation is written across the face of the receipt: “Rear axle broken. J. H. Burch, Agt.”. It thus appears from the receipt, signed not by the consignee or his agent, but by the defendant’s agent, that at the time of the payment of freight and alleged delivery to the consignee the axle in question was “broken.” While the evidence of the witness Gresham is not clear as to the nature and causes of the break, it does not appear that his statement, “when we started to roll it off (the car) the axle broke,” was intended as an admission, or necessarily meant, that the moving of the car broke the axle, as appears from his evidonee following, that “part of the axle looked like it was an old break and part appeared to be a fresh break,” and that “a part of it was rusty between the break.” While it was for the jury to pass upon such questions, they were authorized to find that the meaning of the witness was merely that, because, of'the existing breaks referred to, the axle gave way when the moving was started. Nor does the defendant seem to contend, under its language above quoted, that the evidence demanded a finding that the break was caused by the attempted moving. Since there was no receipt by the consignee for the goods as in good order, and the evidence did not demand any finding that the plaintiff knew or should have known that the attempted moving of the machinery would cause the axle to give way, a verdict was not demanded for the defendant, Imt it was for the jury to pass upon all the evidence in connection with the statutory presumption against the carrier, and say what was the actual and proximate cause of the injury to the axle, alleged to have occurred while in transit, and whether the proven facts showed that the presumption of negligence against the carrier had been successfully rebutted. The onus was not upon the plaintiff to negative the theories suggested by the defendant as to the cause of the break, since the evidence did not demand a finding that either theory had been prima facie established.

. 3. It is further contended that, as to the injury to the machinery while on the defendant’s side-track, the evidence conclusively showed that the- defendant was no more than a naked depositary or gratuitous bailee, liable only for gross neglect; that there was therefore no presumption against the defendant as a warehouseman; that “the court, in holding that defendant would be liable by reason of the fact that the freight agent agreed to look out for the freight so that it would not be. damaged by being struck by trains on the siding, overlooked the cases of Ga. R. &c. Co. v. Thompson, 86 Ga. 327 (13 S. E. 561), and So. Ry. Co. v. Rosenheim, 1 Ga. App. 766 (58 S. E. 81); and that such a promise was a mere personal undertaking by the agent. In the latter of these cases it was held that “One who, having been a passenger, arrives with his baggage at destination, surrenders his checks, opens up the trunks in the baggage-room, and afterwards leaves the trunks in the baggage-room by permission of the baggage clerk, upon a statement that he will be going off next day and will then recheck them, can not hold the railway company responsible, as a carrier of baggage, for the destruction of the trunks by fire during the night. . . The transaction, if not merely a personal one between the owner of the trunks and the baggage clerk, charges the railway company with no higher responsibility than that of a depository” -without compensation. “In neither event is the railway company liable for the loss, no gross negligence appearing.” In that case it appeared that the relationship of carrier and passenger had completely terminated, and that the plaintiff “surrendered the checks [for his baggage], took charge of the trunks, opened them up in the depot, and sold a customer a bill of goods” therefrom. Under such circumstances, where the agent merely permitted the plaintiff, for his convenience in rechecking the trunks the following morning, to leave them during the night in the baggage-room, after they had been actually delivered, and where the plaintiff was neither charged nor made liable for storage, manifestly the defendant did not become a warehouseman. In the former case (86 Ga. 327 (2), 328) the ruling was merely that, “on the trial of an action against a railroad company for the loss of a passenger’s trunk, it was not error to charge that if the company failed to deliver it and undertook to deposit it in its warehouse, its liability would he that of a warehouseman, and it would be bound to use ordinary diligence in taking care of it, and if it failed, the plaintiff would be entitled to recover;” and the court in its opinion said, “Whether the company delivered the trunk to the plaintiff, or to its own agent to he deposited in its warehouse, was a question of fact to be determined by the jury.”

While the question is not without difficulty, under the particular facts of this case as set forth in the original syllabus and the statement of facts, the record not disclosing that the plaintiff consignee had, with full knowledge of the break and the result to the axle of attempting to move the machinery, given a receipt to the carrier for the property as in good order, and not demanding a finding that the plaintiff had taken it into his possession with the duty of removal from the car and side-track, and that delivery had thus been properly and fully accomplished by the carrier, the court adheres to its original judgment and syllabus, that, as to the damage claimed from the knocking of the machinery from the car on the defendant’s side-track, the grant of a nonsuit was erroneous.

Motion for rehearing denied.

Stephens and Bell, JJ., concur.