author: Bloodworth, J.

text:
    16805.
    BROOKS v. BUGG, receiver.
    1. “ ‘As a general rule, a stipulation in a free pass given by a carrier, to the effect that the person who accepts it assumes all risks of injury in transportation, is enforceable; and as to a passenger who has accepted transportation under such a pass a carrier is liable only for injuries resulting from wantonness or wilful negligence.’ Charleston <&e. Ry. Co. v. Thompson, 13 Ga. App. 528 (80 S. E. 1097).” Wright v. Central of Ga. Ry. Co., 18 Ga. App. 290 (89 S. E. 457).
    2. Where a common carrier entered into a contract with a telegraph company, by which each was to render to the other certain services, and the carrier agreed to transport free of charge “all persons in the employ of the telegraph company when traveling on the business of said company, ” and under this contract the carrier issued to a telegraph lineman an annual pass, and the lineman used the pass on a trip for his individual pleasure or on business of his own, the pass when being so used was “gratuitous and not in consideration of services,” and “the stipulations contained in it and on which it is accepted, including one exempting the company from liability in case of injury, are enforceable.”
    Decided January 12, 1926.
    Action for damages; from Fulton superior court—Judge Humphries. April 8, 1925.
    On Sunday morning, March 12, 1922, Walter M. Brooks, a lineman in the employ of the Western Union Telegraph Company, was killed in a wreck at Camp Creek, Fulton County, Georgia, while riding on a passenger-train of the Atlanta, Birmingham & Atlantic Railway Company, which road was then being operated by B. L. Bugg as receiver. The plaintiff, as the wife of the deceased, sued the road for damages, alleging negligence. The defendant filed a plea denying liability, and further pleaded that the deceased was riding on a free pass issued to him by the defendant, which was in the following words: “Atlanta, Birmingham & Atlantic Railway Company, B. L. Bugg, receiver. 1922. B. 2253. Pass Mr. W. M. Brooks, account lineman, Western Union Tel. Co., between all stations, until Dec. 31, 1922, unless otherwise ordered, and subject to conditions on back valid when countersigned by myself, A. Y. B. Gilbert or Geo. M. Gentry. Countersigned by B. L. Bugg, receiver, A. Y. B. Gilbert.” The back of the pass reads as follows: “This pass is not transferable, and is void if presented by any other than the person or persons shown thereon, or if any alteration, addition, or erasure is made on it. The person accepting and using it thereby assumes all risk of accident to person or property, states that he or she is not prohibited by law from receiving free transportation, and agrees to make only such use of the pass as is permitted by Federal and State laws. Good on freight trains. A. Y. B. Gilbert. I accept the above conditions. W. M. Brooks.”
    On the trial of the case it was shown that when Brooks was killed he was not traveling on business for the telegraph company, but on an enterprise of his own. At the conclusion of the testimony the judge, on motion of counsel for the defendant, directed a verdict in favor of the railway company; and the plaintiff excepted.

      Branch & Howard, for plaintiff.

      ColquiU & Conyers, Dorsey, Howell & Heyman, Mark Bolding, Sidney Smith, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) In the brief for the plaintiff it is stated that “In view of the fact that the Gourt directed the verdict on the theory that the deceased was not a passenger for hire of upon a valuable consideration, and his release of defendant from liability barred a recovery by plaintiff, and further that plaintiff does not insist that there was any evidence of gross and wilful negligence, the question before this court for decision is simply this: Was the deceased a passenger for hire or upon a valuable consideration ? If he was, the release in the pass was void, and the plaintiff would be entitled to recover.” In the brief of defendant in error it is insisted that “the case of Lanier v. Bugg, 32 Ga. App. 294 (123 S. E. 145), completely controls . . the case at bar in every single phase.” In that case the deceased, for the value of whose life the suit was brought, came to his death in the same catastrophe as did Brooks, the husband of the plaintiff in this case, and in that case this court held that there could be no recovery “unless the injury was inflicted wilfully and wantonly.” So it seems that the only question to be determined is that stated above, “Was the deceased a passenger for hire or upon a valuable consideration ?”

In the brief for the plaintiff is the following: “The status of the deceased and the character of his transportation is proven by the evidence, as we contend, without conflict, to have been that of a passenger for hire or upon a valuable consideration. He was employed by the Western Union Telegraph Company as a lineman. He was assigned to the line of the telegraph company that paralleled the defendant’s railroad between certain points on the railway line. The railway company owned the lines, poles, etc., and leased them to the telegraph company. The railroad company and the telegraph company entered into a contract with regard to the lease and operation of the telegraph line. The telegraph company agreed to maintain the line along the entire route of defendant’s railroad; to furnish a line and instruments 'for its use, and also for the furnishing of telegraph service to the railroad by the telegraph company over all of the lines of the telegraph company.’ In return the railroad company agreed to transport free of charge over the railroads covered by this agreement all persons in the employ of the telegraph company when traveling on business of the telegraph company. It will thus be seen that a vital, part of the consideration for the lease was the furnishing of telegraphic service to the railroad and the maintenance of the lines. It being the duty of the telegraph company to maintain the lines, a part of the consideration beneficial to the railroad in paying for this service was to transport the linemen of the telegraph company. Under this agreement an annual pass was issued to Brooks by the railroad company, at the request 'of the telegraph company. It states it was issued ‘ account lineman, Western Union Telegraph Company/ clearly meaning' that it was charged to the telegraph company under the contract. The pass further was good between all stations. This pass is not similar to the annual pass issued by the railroad to its employees, but more in the nature of a paid-up mileage ticket, in that it was issued by virtue of the contract between the two companies and- paid for by the service rendered by the telegraph company to the railroad. The railroad received no actual money for the use of its property, nor paid out anything for the telegraph service it received. The telegraph company paid the railroad in service for its benefits, and the railroad company paid the telegraph company for its benefits in service to it. Surely it can not be doubted under these circumstances that there was a valuable consideration paid by the telegraph company for the ‘pass/ and, as we view it, it would make no difference who paid the railroad or how it was paid, the ‘pass’ can not be viewed as free or a gratuity.”

Thus it will be seen that plaintiff based her right to recover upon the idea that the transportation furnished the deceased was paid for; that the consideration therefor was certain services which the telegraph company rendered the railroad company. But, under the contract, what was the obligation of the railroad company to the telegraph company ? The contract expressly provided that transportation was to be furnished the employees of the telegraph company “when traveling on the business of the company." (Italics ours.) This is all that the railroad company obligated itself to do. Anything beyond that would be without consideration, a mere gratuity. Even should we concede- that when the pass was being used on business for the telegraph company, it was not a gratuity, but was for a consideration when so used, this would apply only when the pass was being used on business for the telegraph company, and not when being used by the person'to whom it was issued when traveling for his own pleasure or on his individual business, and on a trip in no way connected with the telegraph company. On such a trip he would be nothing more than the guest of the company. The transportation would be furnished him without compensation, a gratuity, and the pass would be in reality and in common parlance “a free pass.” Indeed, this question seems to have been absolutely settled by the appellate courts of this State and by the United States Supreme Court. The pass in this case was an interstate pass, the terms of which are quoted in the foregoing statement of facts. The telegraph lineman, Brooks, was not required to sign the pass whereby the railroad company was exonerated from liability to him, but signed it freely and voluntarily, and is bound by its provisions. In Charleston & Western Carolina Ry. Co. v. Thompson, 234 U. S. 576 (34 Sup. Ct. 964, 58 L. ed. 1476), the headnotes are as follows: “Under the free pass provision of the Hepburn act of June 29, 1906, a free pass issued by a railroad company between interstate points to a member of the family of an employee is gratuitous and not in consideration of services of the employee. As a pass issued to a member of the family of an employee of a railroad company is free under the provision of the Hepburn act permitting it to be issued, the stipulations contained in it and on which it is accepted, including one exempting the company from liability in case of injury, are valid.” In the opinion in that case (pp. 577, 578), Mr. Justice Holmes said: “The main question is whether when the statute permits the issue of a 'free pass’ to its employees and their families it means what it says. The railroad was under no obligation to issue the pass. It may be doubted whether it could have entered into one, for then the services would be the consideration for the duty and the pass and by § 6 it was forbidden to charge ca greater or less or different compensation’ for transportation of passengers from that of its published rates. The antithesis in the statute is between the reasonable charges to be shown in its schedules and the free passes which it may issue only to those specified in the act. To most of those enumerated the free pass obviously would be gratuitous in the strictest sense, and when dll that may receive them are grouped in a single exception we thinlc it plain that the statute contemplates the pass as gratuitous in the same sense to dll. It follows, or rather is saying the same thing in other words, that even on the improbable speculation that the possibility of getting an occasional free pass entered into the motives of the employee in working for the road, the law did not contemplate his work as a conventional inducement for the pass but on the contrary contemplated the pass as being what it called itself, free. As the pass was .free under the statute, there is no question of the validity of its stipulations. This was conceded by the Court of Appeals, as we have stated, and is established by the decisions of this court. Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, Boering v. Chesapeake Beach Ry. Co., 193 U. S. 442.” (Italics ours.) The provision in the Hepburn act of June 29, 1906, c. 3591, 34 Stat. 584, sec. 1, which permitted common carriers to issue free passes, grouped in a single exception employees and their families and linemen of telegraph and telephone companies. This being true, and free transportation in Georgia being provided on the same terms as in the Hepburn act, supra, as amended June 8, 1910, 36 Stat. 546 (Wright v. Central Ry. Co., supra), we are constrained to hold that it is “plain that the statute contemplates the pass as gratuitous.” See Holly v. Southern Ry. Co., 119 Ga. 767 (47 S. E. 188), and Lanier v. Bugg, supra.

Judgment affir.med.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    16888.
    CARTER v. ALMA STATE BANK.
    Dismissal of the affidavit of illegality was proper, it appearing that there had been no levy of the execution.
    Decided January 12, 1926.
    Certiorari; from Bacon superior court—Judge Reed. September 22, 1925.
    J. J. Bussell, for plaintiff in error.

      E. H. Williams, contra.
   Luke, J.

The Alma State Bank brought suit in a justice’s court

of Bacon county against Julian Carter on a promissory note, and by due process had garnishment issued, transmitted to a justice court in Ware county, and served on the Atlantic Coast Line Railway Company in Ware county. The defendant failed to appear and answer in Bacon county, and judgment by default was entered against him for the amount sued for. Notice of this judgment was transmitted to the justice’s court in Ware county, and judg-’ ment was there rendered in favor of the plaintiff. Thereupon the defendant filed an affidavit of illegality in Bacon county, alleging that the garnishment proceeding was invalid for the reason that the suit on the note in Bacon county, upon which the garnishment proceeding was based, proceeded illegally, in that the defendant was never served with any process or notice of said suit, and did not appear or waive such process or notice, and that the judgment rendered against him in said main suit in Bacon county was void. The justice of the peace dismissed the affidavit of illegality; the defendant carried the case, by certiorari, to the superior court; the judge of the superior court dismissed the certiorari; and the defendant brought the case to this court.

The judge of the superior court properly dismissed the certiorari. The record shows that no levy was ever made, and section 5306 of the Civil Code of 1910 specifically provides that “No affidavit of illegality shall be received by any sheriff or other executing officer until a levy has been made.”

Judgment affirmed.

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


text:
    16892.
    WILLIAMS, receiver, v. WOLFE BROTHERS.
    “A finding on a question of fact by a judge trying a ease without a jury, where there is some evidence to support the finding, will not be disturbed by this court.”
    Decided January 12, 1926.
    Complaint; from Montgomery superior court—Judge Graham. September 17, 1925.

      F. FL. Saffold, M. B. Calhoun, for plaintiff in error.

      Corbitt & Pope, contra.
   Bloodworth, J.

The motion for a new trial contains a special ground as follows: “Movant would show that at the conclusion of the evidence in said case the attorney for the defendant moved the court to direct a verdict for the defendant, and the attorney for the plaintiff moved the court to direct a verdict for the plaintiff; whereupon the court asked if both sides were willing for him to do so, that he would take the papers in said case and such of the evidence as was contained in the interrogatories and consider them and direct a verdict one way or the other. Counsel for both sides agreed, and the court directed a verdict in favor of the plaintiff for the full amount sued for.'” The effect of the foregoing agreement was to allow the judge to pass upon the facts of the case without the intervention of .a jury. The judge, upon a consideration of the conflicting evidence, directed verdict for the plaintiff. There is some evidence to support the finding, and the verdict will not be disturbed by this court. See Coalson Co. v. Burney, 29 Ga. App. 137 (113 S. E. 825); Wiley v. Dodson, 29 Ga. App. 161 (114 S. E. 62), and cases cited in the opinion in each of these cases.

Judgment affirmed.

Luke, J., concurs, Broyles, C. J., disqualified.


author: Broyles, C. J.

text:
    16894.
    Dunson & Brothers Co. v. Unity Cotton Mills.
    Decided January 12, 1926.
    Levy and claim; from city court of LaGrange—Judge Tuggle. September 17, 1925.

      M. U. Mooty„ J. T. Thomasson, for plaintiff.

      M. F. McLendon, Henry Reeves, contra.
   Broyles, C. J.

1. In a claim case where the plaintiff in fi. fa. assumed the burden of proof (certain cotton having been levied on by the foreclosure of a mortgage thereon), he failed to carry .the burden, where he did not show either possession of the cotton, or the right of possession thereof, in the mortgagor at the time the mortgage was executed. Civil Code (1910), § 3256; Durant v. D’Auxy, 107 Ga. 456, 464.

(a) This is true although it be shown by the plaintiff in fi. fa. that the mortgagor acquired possession of the cotton after the execution of the mortgage and prior to the levy. Ga. So. & Fla. Ry. Co. v. Barton, 101 Ga. 466, 469 (28 S. E. 842) ; Lubroline Oil Co. v. Athens Bank, 104 Ga. 376, 382 (30 S. E. 409). This ruling is not in conflict with the decision in Hill v. O’Bryan, 104 Ga. 137 (2) (30 S. E. 996), cited by counsel for the plaintiff in error; for in that ease the rights of third persons were not involved.

2. Under the above-stated ruling the verdict directed in this case was not erroneous for any reason assigned.

Judgment affirmed.

Luke wnd Bloodmoorth, JJ., concur.


text:
    16895.
    HOPSON v. SIKES.
    Conceding (but not deciding) that the original plea was a plea of the general issue, there is absolutely nothing in the record to show that the demurrer thereto or motion to strike it was filed at the appearance term.
    Where 'the defendant in a suit on promissory notes filed a plea which was insufficient, being in substance nothing more than a plea of the general issue, but where the plea was not attacked by demurrer or motion to strike at the appearance term, the court should not at the next term refuse to allow the filing of a plea offered as an amendment to it, to which no other objection was raised than that there was nothing to amend by.
    Decided January 12, 1926.
    Complaint; from city court of LaGrange—Judge Tuggle. September 9, 1925.

      Duke Davis, F. A. Jones, for plaintiff.

      Lovejoy & Mayer, for defendant.
   Luke, J.

Mrs. T. M. Sikes sued M. S. Hopson on two promissory notes, alleging that the defendant executed a deed to described property to secure said indebtedness, and praying' for a general judgment for the amount of the defendant’s indebtedness to her and for a special judgment establishing a lien against the property. Defendant filed the following answer to the petition: “1. Paragraphs 1 and 3 of said petition are admitted. 2. Paragraphs 2 and 4 are denied, and this defendant avers that he is not justly indebted to plaintiff in any sum whatever.” The paragraphs admitted pertain to the residence of the defendant and to notice of the ten per cent, attorney’s fees. The paragraphs denied pertain to the indebtedness on the notes and the giving of the deed to secure the notes. Before the trial the plaintiff in writing demurred to and moved to strike the answer of the defendant, on the ground that it was insufficient in law and that it set out no issuable defense.' The date of the filing of this demurrer or motion to strike is not shown, the “defendant in error stating that he had filed it but was not positive when.” There is nothing in the record to show that it was filed at the appearance term. This motion was up for a hearing at the trial term. After argument on the motion, but “before any order had been signed by the court on said demurrer or motion,” the defendant offered an amendment to his plea, which amendment alleged that the notes sued on were without consideration, that they represented a naked promise, that the notes and the deed referred to in plaintiff’s petition were never delivered to plaintiff, and that the indebtedness to plaintiff, if any existed, had been satisfied. The court refused to allow this amendment and sustained the motion to strike the plea; and thereafter verdict and judgment were rendered for the plaintiff for the full amount sued for. To the rulings stated the defendant excepted.

The position of the defendant in error, briefly stated, is that the answer of the defendant was a mere general denial of the allegations of the petition, that it constituted no legal defense, and that it was in effect a plea of the general issue, and that for this reason there was nothing to amend by, and the plea was properly stricken and the amendment thereto properly disallowed.

Conceding (but not deciding) that the original plea was one of the general issue, there is absolutely nothing in the record to show that the demurrer thereto or motion to strike it was filed at the appearance term. The Supreme Court has held that where a suit was brought on a promissory note, and a plea was filed which was insufficient, as, in substance, it was nothing more than a plea of the general issue, but where no attack was made upon the plea by demurrer or motion to strike at the appearance term, the court should not at the next term have refused to allow the filing of a plea which was offered as an amendment to that previously filed, and to which no other objection was raised than that there was nothing to amend by. Simmons Furniture & Lumber Co. v. Reynolds, 135 Ga. 595 (69 S. E. 913). In the case of Bland v. Swainsboro Fertilizer Co., 20 Ga. App. 154 (92 S. E. 760), the suit was upon an open account, but the principle announced above was invoked, and this court held that the trial court erred in refusing to allow an amendment to the answer, on the ground that there was nothing to amend by; because “no demurrer to the plea was filed at the appearance term, nor was any motion made to strike the plea at that term.” (Italics ours.) The failure of the record to show that the demurrer or motion to strike was filed at the appearance term is what differentiates the case under consideration and the Simmons case, supra, from the cases cited by defendant in error. As stated in McMillan v. Fourth National Bank, 18 Ga. App. 445 (2 a) (89 S. E. 635), “in the case of Simmons Furniture &c. Co. v. Reynolds [supra] it appears that no attack was made upon the plea by demurrer at the appearance term, and that case is therefore distinguishable on its facts from the case under consideration.”

The court erred in refusing to allow the amendment to the plea, and the further proceedings in the ease were nugatory.

Judgment reversed.

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


text:
    16897.
    Hardman v. McCaskey Register Co.
    Decided January 12, 1926.
    Action for damages; from Madison superior court—Judge W. L. Hodges. September 12, 1925.

      Erwin, Erwin & Nix, R. Howard Gordon, for plaintiff.

      Berry T. Moseley, for defendant.
   Broyles, C. J.

The evidence demanded a finding for the defendant, and the court did not err in directing a verdict in favor of that party.

Judgment affirmed.

Luke <md Blood/ioorth, JJ., concur.


text:
    16899.
    Long v. The State.
    Decided January 12, 1926.
    Indictment for burglary; from Troup superior court—Judge Eoop. September 19, 1925.

      Henry Reeves, for plaintifE in error.

      W. Y. Atkinson, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial in this case contains the general grounds only. There is sufficient evidence to support the verdict, which is approved by the trial judge, and the judgment is

Affirmed.

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


text:
    16902.
    Conner v. Citizens Bank.
    Decided January 12, 1926.
    Complaint; from Hall superior court—Judge J. B. Jones. Sep tember 26, 1925.

      J. G. Collins, for plaintifE in error.

      Davie & Reid, contra.
   Bloodworth, J.

1. In the absence of a proper and timely written request as provided by section 6084 of the Civil Code of 1910, and in view of the entire charge, a new trial is not required because of the failure of the court to instruct the jury more fully on circumstantial evidence.

2. There is no such material error in any of the excerpts from the charge, of which complaint is made, as to require the grant of a new trial.

3. Even should it be conceded that the defendant should have been allowed to testify that since a certain time in his life it was his fixed habit not to sign notes as security, exclusion of such testimony does not require the grant of a new trial, as the defendant swore positively, when the note sued on was exhibited to him, “I did not sign it, nor did I authorize anyone to sign it for me, and I had nothing to do with the execution of that note.”

4. The jury, the final arbiters on questions of fact, decided this case in favor of the plaintiff, and this court will not say that there was no evidence authorizing their finding.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    16903.
    Jones v. Seaboard Air-Line Railway Co.
    Decided January 12, 1926.
    Action for damages; from Chattahoochee superior court—Judge McLaughlin. September 31, 1935.

      Hatcher & Hatcher, W. B. Short, for plaintiff.

      W. W. Hylces, G. 0. Minter, for defendant.
   Broyles, O. J.

Under the facts of the case as disclosed by the record the award of a nonsuit was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16910.
    Adams v. Few.
    Decided January 12, 1926.
    Complaint; from Morgan superior court—Judge Park. October 16, 1935.

      E. R. Lambert, Miles F. Lewis, for plaintiff in error.

      ■Anderson & Wood, contra.
   Bloodworth, J.

1. In neither of the excerpts from the charge complained of, when the entire charge of the court is considered, did the court commit such material error as requires another trial of the case.

2. The last special ground of the motion is but an amplification of the general grounds; the jury passed upon the disputed questions of fact, and, their verdict being supported by evidence and approved by the trial judge, this court will not interfere.

Judgment affirmed.

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


author: Broyles,. O. J.

text:
    16911.
    Bank of Bowdon v. Lovvorn Grocery Co.
    Decided January 12, 1926.
   Broyles,. O. J.

1. The overruling of the demurrer to the amended petition was not error.

2. Where a contract is pleaded, it is not necessary, even though the contract be within the statute of frauds, to allege that it was in. writing.. Upon demurrer it will be presumed that the contract was in writing, unless the averments of the pleadings distinctly show the contrary. Ansley v. Hightower, 120 Ga. 719 (3) (48 S. E. 197). Under this ruling and the facts of the instant case, the overruling of the demurrer to the-defendant’s plea did not establish as the law of the case that the agreement set up in the plea was not within the statute of frauds.

3. Under the evidence adduced, the court did not err in directing the verdict for the defendant in error.

Judgment affirm,ed.

Lulce and Bloodworth, JJ., concur.

Complaint; from city court of Carrollton—Judge Hood. September 16, 1925.

Boykin & Boykin, for plaintiff in error.

B. D. Jackson & Son, contra.


text:
    16914.
    BAZEMORE v. THE STATE.
    In a criminal case, where an exception is relied upon to prevent the bar of the statute, of limitations, it must be alleged and proved.
    Decided January 12, 1926.
    Larceny; from city court of Reidsville—Judge Cowart. September 15, 1925.

      Lankford & Rogers, for plaintiff in error.

      M. W. Bason, solicitor, S. B. McCall, contra.
   Bloodworth, J.

1. When an accusation is drawn against a •person charging him with a violation of a criminal statute of this State, so far as the time of the commission of the act is concerned, it is usually necessary to allege the date only upon which the crime was committed, for in practically all cases both the “offender and the' offense” are known before the time in which the offense is barred by the statute. However, it so happens that sometimes either the offense or the offender is not known within that time. To cover such cases section 30 (4) of the criminal code of 1910 provides, “Nor shall any limitation run so long as the offender or offense is unknown.” The accused was charged with simple larceny, (a misdemeanor), and that section of the code also provides that indictments may be found and filed in the proper courts “in all misdemeanors, within two years after the commission of the offense, and at no time thereafter.” The accusation alleges that the offense was committed on October 15, 1921, and that “the alleged thief in this accusation was not known as the perpetrator of said crime until on or about February 1, 1924, he was not' known as said offender to this prosecutor until February 1, 1924.” As the accusation was filed on September 2, 1924, and was based upon an affidavit made on that date, it would have been subject to demurrer without alleging the foregoing exception. The exception, therefore, is an essential and material part of the accusation and necessary to be proved. Hollingsworth v. State, 7 Ga. App. 16 (1) (65 S. E. 1077); Hansford v. State, 54 Ga. 55 (3). On the trial of the case in June, 1925, the prosecutor swore: “In 1931 I lost a circular saw . . I saw the saw again a year ago last March on Mr. Bazemore’s mill, the defendant in this case. . . Mr. Bazemore was present.” This evidence within itself is not sufficient to support the allegation that the offender was not known “until February 1, 1924.” The court therefore erred in overruling the motion for a new trial.

2. It is unnecessary to consider the other allegations of error.

Judgment reversed.

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


text:
    16915.
    Derresaw v. The State.
    Decided January 12, 1926.
    Conviction of larceny; from city court of Wrightsville—Judge Blount. October 24, 1925.

      G. S. Glaxton, for plaintiff in error.

      J. Roy Rowland, solicitor, contra.
   Broyles, C. J.

The evidence tending to show the guilt of the accused was wholly circumstantial and was not sufficient to exclude every reasonable hypothesis save that of his guilt.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    16916.
    GRUBBS v. HAMBY, administrator.
    A recovery by the daughter against the estate of her deceased mother, foi services rendered the mother, would not have been authorized, under the evidence in this case, the evidence not being sufficient to authorize the jury to find that there was either an express or an implied contract to compensate the daughter for her services. The grant of a nonsuit was proper.
    Decided January 12, 1926.
    Complaint; from Douglas superior court—Judge Irwin. September 24, 1925.

      J. R. Hutcheson, for plaintiff.

      J. S. Edwards, Astor Merritt, for defendant.
   Bloodworth, J.

“Ordinarily, where one renders in behalf of another valuable services which are accepted by the latter, the law raises in favor of the former an implied promise to pay for the same, although no formal or express contract to pay has been made. Where, however, the parties sustain toward each other the relation of parent and child, and the services performed are in the nature of care and attention bestowed by a son upon an old and infirm father, no such presumption arises by operation of law. In order, therefore, to sustain a recovery by the son for such services, it must affirmatively appear, either that they were rendered under an express contract that the son was to be paid for them, or the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty; love and affection arising out of this relation.” Hudson v. Hudson, 90 Ga. 581 (1) (16 S. E. 349). “In order to authorize a recovery by a son against the estate of his deceased father for services in the nature of care and attention to the latter while old and infirm, it must affirmatively appear either that the services were rendered under an express contract that the son was to be paid for them, or the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection which arose out of the relation existing between them. Hudson v. Hudson, 90 Ga. 581 (16 S. E. 349). Mere general expressions by the father, to the effect that the son had waited on him well, and that he wanted him to be well compensated for it, are not sufficient evidence of any contract either express or implied, to pay for the services.” O’Kelly v. Faulkner, 92 Ga. 521 (1) (17 S. E. 847).

This was a suit by a daughter against the estate of her mother for services rendered the mother. Under the principles announced in the foregoing decisions, the evidence was not sufficient to authorize the jury to find either an express or an implied contract to compensate the plaintiff for her services. The court therefore properly granted a nonsuit.

Judgment affirmed.

Broyles, G. J., and Luke, J., conmr.


text:
    16917.
    Shirley, ordinary, for use, etc. v. Trammell et. al.

    Decided January 12, 1926.
    Action on bond; from Milton superior court—Judge Blair. October 3, 1925.

      E. B. Moss, G. B. Walker, for plaintiff.

      J. P. Brooke, for defendants.
   Broyles, O. J.

This is a suit against the sureties on a constable’s bond, and the sureties filed a plea of non est factum. Upon the trial the undisputed evidence showed that the sureties actually signed the bond in August, 1923, while the copy of the bond attached to the petition was dated January 1, 1923. The evidence as to whether the bond bore the date January 1, 1923, when the sureties signed it, was in acute conflict; and, under the other facts of the case, this question was a material one and should have been submitted-to the jury. The court, therefore, erred in not so submitting the question, and in directing a verdict for the defendants.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    16919.
    Smith v. The State.
    Decided January 12, 1926.
    . Conviction of sale of liquor; from city court of Summerville— Judge Neal. October 21, 1925.

      0. B. Rivers, for plaintiff in error.

      J. F. Kelly, solicitor, contra.
   Bloodworth, J.

1. Under the facts and in the light of the remainder of the charge, it was not error for the court to instruct the jury that “for anyone to take actual possession and control of intoxicating liquors of any amount is a violation of law regardless of ownership.”

2. There was evidence to support the verdict.

Judgment affirmed.

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


author: Broyles, 0.-J.

text:
    16922.
    Farrar Lumber Company v. Burkhart.
    Decided January 12, 1926.
   Broyles, 0.-J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial (several of which are too defective and incomplete to be considered) show cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Garnishment; from Whitfield superior court—Judge Tarver. September 26, 1925.

F. K. McOutchen, for plaintiff in error.

Maddox, Maddox & Mitchell, contra.


text:
    16930.
    BARTENFIELD v. THE STATE.
    A conviction of transporting intoxicating liquor was not authorized by the evidence.
    Decided January 12, 1926.
    Indictment for transporting liquor; from Catoosa superior court —Judge Tarver. September 12, 1925.
    From the evidence it appears that intoxicating liquor was carried in an automobile licensed in the name of the defendant. A witness for the defendant testified that he sold the automobile to a third person, and applied, at that person’s request, for a license for it in the name of the defendant; that the witness, or his bookkeeper, signed the defendant’s name to the application. It did not appear that the defendant knew of this, and the license itself was the only evidence introduced to connect him with the automobile or the transportation of the liquor.

      Stafford R. Brooke, Oliver R. Hardin, T. 0. Head, for plaintiff in error.

      O. 0. Pittman, solicitor-general, contra.
   Bloodworth, J.

The evidence by which the State seeks to connect the accused with the crime charged in the indictment is entirely circumstantial, and is not sufficient to exclude every reasonable hypothesis save that of his guilt.

Judgment reversed.

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


text:
    16932.
    Turner v. The State.
    Decided January 12, 1926.
   Broyles, C. J.

The court did not err in dismissing the petition for certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur. .

Certiorari; from Bacon superior court—Judge Eeed. September 23, 1925.

I. J. Bussell, for plaintiff in error.

A. B. Spence, solicitor-general, C. A. Williams, contra.


text:
    16938.
    Toland v. The State.
    Decided January 12, 1926.
    Conviction of manslaughter; from Jasper superior court—Judge Park. October 21, 1925.

      Clement & Campbell, for plaintiff in error.

      Joseph B. Duhe, solicitor-general, contra.
   Bloodworth, J.

There is no merit in any of the special grounds of the motion for a new trial; the evidence is sufficient to support the verdict, and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    16939.
    Henderson v. The State.
    Decided January 12, 1926.
    Conviction of possessing liquor; from city court of Blackshear— Judge Mitchell. September 28, 1925.

      James B. Thomas & Son, for plaintiff in error.

      S. Thomas Memory, solicitor, contra.
   Broyles, O. J.

While the evidence tending to connect the accused with the offense charged was circumstantial, this court can not say, as a matter of law, that the jury were not authorized to find that the evidence was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt; and, the finding of the jury having been approved by the trial judge, and no error of law appearing, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodwrth, JJ., concur.


text:
    16941.
    Miller v. The State.
    Decided January 12, 1926.
   Bloodworth, J.

The motion for a new trial based on the general grounds only was properly overruled, as the verdict was supported by evidence.

Judgment affirmed.

Broyles, 0. J., a/nd Luke, J., eoneur.

Conviction of possessing liquor; from city court of Carrollton— Judge Hood. October 3, 1925.

Beall & Beall, fpr plaintiff in error.

Emmett Smith, solicitor, contra.


author: Bloodwobth, J.

text:
    16944.
    Smith v. The State.
    Decided January 12, 1926.
    Rehearing denied February 4, 1926.
    Conviction of making liquor; from Wilkes superior court— Judge Perryman. October 9, 1925.

      Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodwobth, J.

1. “In the absence of a written request, the court did not err in failing to charge on the weight to be given to evidence of good character.” McLendon v. State, 7 Ga. App. 687 (2) (67 S. E. 846); Mills v. State, 17 Ga. App. 116 (86 S. E. 280) ; Ellison v. State, 137 Ga. 193 (7) (73 S. E. 255).

2. The court charged the jury as follows: “Whether dependent upon direct or circumstantial evidence, the true question in all criminal cases is not whether it be possible that the conclusion at which the testimony points was false, but whether the testimony is sufficient to satisfy the minds and conscience of the jury beyond a reasonable doubt.” Penal Code (1910), § 1013. These instructions were not erroneous “in that the court failed to charge the jury that the testimony should be sufficient to satisfy the minds and conscience of a fair and impartial jury, and that beyond a reasonable doubt,” the judge having fully charged the jury as to reasonable doubt.

3. When considered with the remainder of the charge, there is no error in the excerpt in reference to reconciling the evidence.

4. There was sufficient evidence to authorize the verdict.

Judgment affirmed.

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


text:
    16947.
    Kitchens v. The State.
   Bloodwobth, J.

1. The court did not abuse its discretion when it overruled the motion for a continuance.

2. For no reason alleged did the court err in admitting the evidence of which complaint is made in special grounds 2 and 3 of the motion for a new trial. This evidence was admissible to show intent or motive. Fraser v. State, 55 Ga. 326 (1) ; Everett v. State, 62 Ga. 70 (2); Harrell v. State, ante, 577; Reese v. State, ante, 600, and cases cited. Moreover, even if the admission of this evidence on direct examination was error, it would not require the grant of a new trial, for practically the same evidence from this witness was brought out by counsel for defendant on cross-examination.

Decided January 12, 1926.

Conviction of assault with intent to murder; from Bibb superior court—Judge Mathews. October 17, 1925.

W, 0. Cooper Jr., for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.

3. Eor no reason alleged was it error to allow the evidence, the admission of which is objected to in special grounds 4 and 5, to go to the jury.

4. There is ample evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16949.
    Walker v. The State.
    Decided January 12, 1926.
    Conviction of possessing liquor; from Fulton superior court— Judge Howard. October 10, 1925.

      F. W. Flynt, Charles J. Graham, for plaintiff in error.

      John A. Boykin, solicitor-general, Ralph H. Pharr, contra.
   Broyles, O. J.

1. The special grounds of the motion for a new trial show no cause for a reversal of the judgment below.

2. While the evidence tending to connect the accused with the offense charged was circumstantial, this court can not say, as a matter of law, that the jury were not authorized to find that the evidence was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused; and, the verdict of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16962.
    MORROW v. THE STATE.
    A conviction of possessing and selling intoxicating liquor was authorized by the evidence.
    Decided January 21, 1926.
    Indictment for misdemeanor; from city court of Floyd county— Judge Bale. October 7, 1925.

      John Camp Davis, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Luke, J.

The defendant Ben Morrow was charged with possessing and selling intoxicating liquors, and a general verdict of guilty was rendered. The prosecutor swore that he bought the whiskey from the defendant, that it made him drunk, that he pleaded guilty to a charge of drunkenness, and that he did not willingly testify against the defendant, but did so to prevent being sent to the chain-gang by the ■ judge who sentenced him on the charge of drunkenness. The order of the court sentencing the prosecutor shows that the chain-gang sentence imposed was “to be served on the outside during good behavior, law observance, and attending city court of Floyd county against Ben Morrow;” thus corroborating the testimony to that effect. The attempt to impeach the prosecutor was overwhelmingly rebutted by witnesses who swore that the prosecutor’s character was good, and that he was worthy of belief under oath.

The evidence supports the verdict, which is approved by the trial judge; none of the special grounds of the motion for a new •trial shows cause for reversal; and the judgment is

Affirmed.

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


author: Bloodwoeth, J.

text:
    16969.
    Pullen v. The State.
    Decided January 12, 1926.
    Conviction of possessing liquor; from Whitfield superior court— Judge Tarver. October 24, 1925.

      Maddox, Maddox & Mitchell, for plaintiff in error.

      O. G. Pittman, solicitor-general, contra.
   Bloodwoeth, J.

The evidence was sufficient to sustain the verdict of guilty, the verdict was approved by the trial judge, and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment" affirmed.

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


text:
    16974.
    Hutchinson v. The State.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only, and the sole contention of counsel for the accused is that the evidence of an accomplice was not sufficiently corroborated. Under the facts of the ease this court can not hold, as a matter of law, that the jury were not authorized to find that the testimony of the accomplice was sufficiently corroborated by other evidence in the ease; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Decided January 12, 1926.

Indictment for burglary; from Chatham superior court—Judge Meldrim. October 5, 1935.

Shelly Myriclc, for plaintiff in error.

Walter Q. Hartridge, solicitor-general, contra.

Judgment affirmed.

Luke cmd Bloodworth, JJ., concur.


text:
    16976.
    Mixon v. The State.
   Bloodwobth, J.

1. The accusation alleged that the defendant “did wilfully and voluntarily abandon his minor child, Donald Mixon, age 13 months, leaving it in a destitute and dependent condition.” The court did not, err in refusing to allow the mother of the child alleged to have been abandoned to answer the question, “You have filed a suit for divorce and alimony in the superior court in behalf of yourself and child, haven’t you?” Nor did the court err- in refusing to allow the grandfather of the child to testify in answer to the question, “Isn’t your daughter suing her husband for divorce and alimony for herself and child?”

2. Even should we concede that the court erred in refusing to allow the witness to answer the question set out in the 3d ground of the amendment (filed September 11, 1925) to the motion for a new trial, the error was harmless, in view of the judge’s note qualifying this ground as follows: “As to third ground of amended motion the court permitted the question on cross-examination set forth therein, as will be seen from answer in brief of evidence.”

3. Under the qualifying note of the judge thereo is no merit in ground 5 of the amendment (filed September 11, 1925) to the motion for a new trial.

4. “Under section 114 of the Penal Code of 1895, as amended by the Act of 1907 (Acts 1907, p. 57), the offense of the father in abandoning his child is fully consummated if he abandons it in a dependent condition. Before this section was amended the offense was not complete unless the father left the child both dependent and destitute. An allegation in the indictment that the child was abandoned in a destitute condition is surplusage, and need not be proved, it being sufficient to allege and prove that the father abandoned his child and left it dependent. Cleveland v. State, 7 Ga. App. 622 (67 S. E. 696).” Daniels v. State, 8 Ga. App. 469 (1) (69 S. E. 588). Under the foregoing ruling there is no merit in the special ground of the motion for a new trial which was filed September 14, 192-5.

5. Where counsel for the defendant in a criminal case presented to the judge who tried the case a motion for a new trial, and where the attorney representing the State objected to certain of the grounds of the motion “for the reason that said grounds did not accurately state what occurred upon the trial,” and the judge agreed with State’s counsel and so amended said grounds that they “would conform to the facts as to what did occur upon the trial,” it was not error for the judge, “after a certificate and approval had already been signed by the court,” to refuse to allow the movant to “bring witnesses who heard the trial of the case to refresh the memory of the court,” the judge stating that he remembered what had occurred upon the trial of the case.

Decided January 12, 1926.

Conviction of abandonment of child; from city court of Floyd county—Judge Bale. September 19, 1925.

James Maddox, for plaintiff in error.

Alec Harris, solicitor, contra.

6. There was evidence to support the finding of the jury.

Judgment affirmed.

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


text:
    16977.
    Adams v. The State.
    Decided January 12, 1926.
    Conviction of seduction; from Hart superior court—Judge W. L. Hodges. October 22, 1925.

      B. B. Zellars, J. B. McOurry, for plaintiff in error.

      A. 8. Shelton, solicitor-general, J. H. & Hmmeti Shelton, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloockvorfh, JJ., concur.


text:
    16988.
    Daniel v. The State.
    Decided January 12, 1926.
    Indictment for selling liquor; from Dade superior court—Judge Tarver. October 24, 1925.
   Broyles, O. J.

1. Alleged prejudicial remarks of the judge, during the trial of a ease, in the presence and hearing of the jury, are not ground for a new trial, unless a motion .to declare a mistrial on that ground was made and overruled. Harrison v. State, 20 Ga. App. 157 (6) (92 S. E. 970). Under this ruling and the facts of the instant case, ground 5 of the amendment to the motion for a new trial is without merit.

2. The remaining special grounds of the motion for a new trial show no cause for a new trial, and the verdict is amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

B. T. Brocle, J. M. Lang, for plaintiff in error.

G. G. Pittman, solicitor-general, contra.


author: Blood-worth, J.

text:
    16995.
    Ellison v. The State.
    Decided January 12, 1926.
    Indictment for violation of prohibition law; from Cherokee superior court—Judge Blair. October 10, 1925.

      A. J. Henderson, H. M. McOandless, for plaintiff in error.

      John 8. Wood, solicitor-general, contra.
   Blood-worth, J.

The indictment contained two counts, one charging that the accused manufactured intoxicating liquor, and the other that he knowingly permitted apparatus used for manufacturing alcoholic and intoxicating liquor to be located upon his premises. The jury returned a verdict of guilty on both counts, and on the first recommended that the accused be punished as for a misdemeanor. There was some evidence to support the finding of the jury on each count. While the evidence as to the manufacturing of the liquor was circumstantial, it was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.

There is no merit in any of the special grounds of the motion for a new trial. The evidence of which complaint was made was admissible to show intent and a line of conduct. See Kitchens v. State, ante, 779, and cases there cited.

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    16905.
    Joy Floral Company et al. v. Lochridge.
    Decided January 13, 1926.
   Bloodwortii, J.

1. The court properly refused to allow the witness to answer the question of which complaint is made in the amendment to the motion for a new trial.

2. When considered in connection with the other portions of the charge of the court, the excerpts of which complaint is made in the motion for a new trial are not erroneous.

3. In view of the instructions given the jury, there is no merit in the special ground of the motion complaining of the refusal of the court to further instruct them that they “should also take into consideration a serious major operation undergone by the plaintiff a few months prior to the alleged injury, and what effect, if any, that operation had on plaintiff’s condition at the time of the trial.”

4. There is abundant evidence to sustain a finding for the plaintiff, and no complaint is made of the amount of the verdict.

Judgment affirmed.

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

Action for damages; from city court of Atlanta—Judge Reid. October 3, 1925.

Jones, Evins, Moore & Powers, William E.-Arnaud, for plaintiffs in error.

Mark Bolding, Dorsey, Howell & Heyman, contra.


text:
    16921.
    Patterson v. Farish & Sons.
    Decided January 13, 1926.
    Action for money received; from Muscogee superior court— Judge McLaughlin. October 17, 1925.

      Hatcher & Hatcher, for plaintiff.

      McGutchen, Bowden & Gaggstatter, for defendants.
   Bloodwoeth, J.

1. The first ground of the amendment to the motion for a new trial complains of the admission of certain documentary evidence, but, as the evidence is not set forth in the ground nor attached thereto as an exhibit, this ground can not be considered. Carson v. State, 23 Ga. App. 535 (3) (98 S. E. 187).

2. There is np merit in the other special ground of the motion.

3. The evidence demanded a verdict for the defendant, and the court did not err in directing such a verdict, nor in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Luhe, J., concur.


text:
    16979.
    Howard v. The State.
    Decided January 13, 1926.
    Conviction of manslaughter; from Fulton superior court—Judge Howard. October 3, 1925.

      Branch & Howard', J. W. LeCraw, Shackelford & Shackelford, for plaintiff in error.

      John A. Boykin, solicitor-general, Ralph H. Pharr, contra.
   Bloodwoeth, J.

In view of the evidence and the statement of the defendant, and of the entire charge of the court, there is no such material error in any of the excerpts from the charge complained of in the motion for a new trial as requires a reversal of the judgment.

The verdict of voluntary manslaughter was not without evidence to support it.

Judgment affirmed.

Broyles, C. J., and Luhe, J., concur.


author: Stephens, J.

text:
    16254, 16255.
    Hall v. Georgia Southern & Florida Railway Company; and vice versa.

    Decided January 14, 1926.
    Action for damages; from city court of Yaldosta—Judge Little. October 31, 1934.

      Whitalcer & Duhes, P. T. Knight, Jeff S. Story, for plaintiff.

      J. E. Hall, C. J. Bloch, Patterson & Copeland, for defendant., '
   Stephens, J.

1. A railroad company is under no duty to maintain a public highway, which traverses its right of way, in a condition safe for travel at a point where the highway is not crossed by the company’s tracks or at a point not so close to such crossing as to render the repair of the highway at this point “necessary for a traveler to get off, and on the crossing safely and conveniently.” Oivil Code (1910), § 2674.

2. In a suit against a railroad company for personal injuries alleged to have been sustained by the plaintiff as a result of a collision between an automobile in which the plaintiff was traveling and an obstruction in the highway upon the company’s property at or near a point where the highway crossed the company’s tracks, a nonsuit was properly awarded, where it appeared from undisputed evidence that the obstruction causing the injury was in the highway at a point one hundred and seventy-four feet beyond the crossing, and where it did not appear that the obstruction was placed there by the defendant. This is true although the highway at this point was upon land belonging to the defendant company and, by reason of the highway running in a generally parallel direction with the railroad-tracks, the obstruction was at a point within fifty feet of the defendant’s railroad-tracks.

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

Jenldns, P. J., and Bell, J., concur.


text:
    16265.
    Ludlam Construction Company v. Cummings, for use, etc.
   Stephens, J.

1. A contract entered into between the owner of land and a construction company, by the terms of which the construction company agrees to erect upon- the land a structure in accordance with plans and specifications which “have been examined and approved by” named persons, who are described in the contract as the prospective tenants and purchasers of the improved property, shows no right, title, or interest whatsoever, either legal or equitable, of such prospective tenants and purchasers in the contract as against the construction company.

’ £. A plaintiff who has no legal or equitable right to maintain the suit can npt amend by striking his name therefrom as plaintiff and substituting therefor, as plaintiff suing for his use, the mame of another having the legal right to maintain-the suit.

3. In a suit by the prospective tenants and purchasers named in the contract against the construction company to recover under the contract, an amendment to the petition, striking the names of the plaintiffs and substituting therefor the name of the owner, suing for their use, was improperly allowed over objection. Civil Code (1910), § 5689.

Decided January 14, 1926.

Complaint; from Decatur superior court—John E. Wilson, judge himself (the minor) the crops levied upon; that the claimant had undertaken to produce the crops jointly with an older brother upon land owned by his mother, although the defendant in execution resided thereon, that the older brother had died before the crops had come up, and that the crops had been afterwards cultivated and produced by the claimant with the assistance of other minor children of the defendant. Civil Code (1910), § 3021 (4) ; Richter v. Virginia-Carolina Chemical Co., 1 Ca. App. 344 (2) (57 S. E. 939). Such evidence undisputedly established no title whatsoever in the father, the defendant in execution, but established in the claimant title to at least a fractional part of the crops levied upon. The father having consented to the claimant’s producing the crops, the claimant, as against the father, was entitled to the crops produced as a result of his labor; and therefore whatever right may have vested in the father by virtue of other minor children assisting the claimant was that of a creditor only, and not a part owner of the crops produced. Dollar v. Busha, 124 Ga. 521 (52 S. E. 615).

3. The court properly directed a verdict for the claimant.

Judgment affirmed.

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

Decided January 14, 1926.

pro hac vice. December 31, 1924.

T. 8. Hawes, Hartsfield & Conger, for plaintiff in error.

Pottle & Hof may er, A. E. Thornton, contra.

4. The petition, before the allowance of the amendment, failed to set out a cause of action in the plaintiffs, and the court erred in not dismissing it on demurrer. Civil Code (1910), § 5516.

Judgment reversed.

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


text:
    16275.
    Ehrlich & Company v. King.
   Stephens, J.

1. Since a claimant of property levied upon, where no right, title, or interest whatsoever appears in the defendant in execution, is required, in order to sustain his claim, to show only some title or interest in the property superior to the right of the plaintiff to proceed with the execution, title in the claimant to a fractional interest in the property is sufficient to support a finding in his favor. See, in this connection, Wade v. Hamilton, 30 Ga. 450 (2); Deariso v. Lawrence, 3 Ga. App. 580 (2) (60 S. E. 330).

2. A claimant upon whom was the burden of proof successfully carried that burden, and a.verdict in his favor was properly directed, where it appeared from undisputed evidence that he was a minor and had been given permission by his father, the defendant in execution, to make for

Levy and claim; from city court- of Bainbridge—Judge Spooner. January 7, 1925.

John B. Wilson, for plaintiffs.

Ha-rtsfield & Conger, contra.


author: Jenkins, P. J.

text:
    16466.
    Elliott v. Dolvin, administratrix, et al.

    Decided January 14, 1926.
    Complaint; from Eulton superior court—Judge Ellis. October 21, 1924.

      J. J. Barge, for-plaintiff.

      Burr ess & Dillard, McElreath & Scott, for defendants.
   Jenkins, P. J.

“Where one purchasing real estate has the opportunity of examining it before buying, but, instead of doing so, voluntarily relies upon the statements of the vendor concerning its character and value, the contract will not be rescinded or set aside, or the purchase price of the land abated, because of the falsity of such statements, unless some fraud or artifice was practiced by the vendor to prevent such examination. This is true even though the vendee in buying the land may have acted upon the misrepresentations of the vendor or his agent.” ’ Newbern v. Milhollin, 31 Ga. App. 247 (1) (120 S. E. 637), and cases cited. There is nothing disclosed by the record in the instant case to withdraw it from the operation of the foregoing rule. The plaintiff purchaser in fact inspected the apartment house and examined it to her satisfaction about two weeks before she closed the trade. That she failed to inspect some of the rooms in which she now claims the plastering was defective was not brought about by any fraud or artifice practiced by the defendants representing the opposite party to the transaction, but was, as she alleges, due merely to the fact that the uninspected rooms were at the time occupied. Other facts which would necessitate the conclusion reached by the trial judge in directing a verdict for the defendants are disclosed by the record, but it is not deemed necessary to deal with them.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16514.
    Gunnin v. Carter.
   Stephens, J.

1. The record of an instrument in the office of the clerk of the superior court constitutes’ no constructive notice of any part of its contents omitted from record, where there is nothing in it, as it appears of record, to indicate such omission or to put a prudent man upon notice of facts which the part of the instrument omitted from the record might disclose. Thus, where such a record shows a promissory note for the purchase-money of described personalty, which contains a waiver of homestead and an obligation to pay attorney’s fees, but no reservation of title to the property in the seller, such record does not constitute constructive notice of a provision in the original note, of which the record purports to be a copy, retaining title to the property in the seller, which provision retaining title has been omitted from the record.

Decided January 14, 1926.

Levy and claim; from Paulding superior court—Judge Irwin. March 14, 1925.

Mozley & Gann, for plaintiff in error.

Gordon M. Gombs, contra.

2. Nor did the filing for record of the original note constitute any constructive notice of its contents. Battle v. DeLoach, 18 Ga. App. 526 (89 S. E. 1050).

3. Since the validity of a judgment against a defendant in execution can be successfully attacked by a claimant of the property levied upon only upon such ground as could be urged by the defendant in fi. fa., the claimant can not attack a judgment, regularly entered after the appearance of the defendant, upon the ground that at the time of its rendition the court in which it was rendered did not have jurisdiction of the person of the defendant. See, in this connection, Ansley Co. v. O’Byrne, 120 Ga. 618 (48 S. E. 228).

4. Where personal property in possession of a defendant in execution was levied upon and a claim filed thereto by one who had sold the property to the defendant in execution and had not been paid therefor, and where there was no question of actual notice, the court did not, under an application of the above rulings to the undisputed facts, err in directing a verdict for the plaintiff in execution.

Judgment affirmed.

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


text:
    16574.
    BARKSDALE v. CITIZENS NATIONAL BANK.
    In becoming a guarantor to the bank against loss on account of its loan to Williams, the defendant contracted with reference to the bank’s contract with Williams, which, in ease of default as to payment of the loan, expressly gave the bank power to sell the collaterals at private sale without notice; and it can not be assumed that in making the contract of guaranty the parties contemplated that the bank must renounce the power to sell the collaterals.
    The guarantors having been credited by the bank with the full amount of the sale price of the collaterals, the defendant is not entitled to complain that the full amount was not collected by the bank.
    Decided January 14, 1926.
    Complaint; from Wilkes superior court—Judge Perryman. April 23, 1925.

      Norman & Norman, for plaintiff in error.

      G. E. Sutton, B. W. Fortson, contra.
   Jenkins, P. J.

The plaintiff, a national bank, sued Barksdale on a contract of guaranty which he and a number of other directors of the bank entered into with the bank to save it from loss on certain large loans, which were excessive, and which the bank had previously made to one Williams. It appears that the same directors had entered into a previous contract with the bank with reference to these loans, by the terms of which the directors became the purchasers of the Williams loan in proportion to the amount of the bank’s capital stock which each held, to be paid for by a retirement of their respective capital stock to the extent of $25,000 total. This was done, leaving still due by Williams to the bank a balance of $8,057. It appeared that, as security for this loan to the bank, Williams had deposited certain collateral, consisting of corporate stocks in various corporations; and that he had given to the bank a power to sell the said stock collaterals, at public or private sale, with or without advertisement, upon his default as to payment of the loan. Upon the ascertainment of this balance due, and remaining prospective or possible loss by the bank on the Williams debt, the directors entered into the contract of guaranty which is the basis of the present suit. This special contract of guaranty by the directors was upon an independent consideration of ten dollars, and recited that “the parties of the first part [the guarantors] hereby guarantee the party of the second part [the bank] against any loss on account of said W. L. Williams loan, and agree to pay to said bank $8,057.00 balance due on the loss sustained by party of the second part on account of the said W. L. Williams loan, provided, however, that if the collateral given by said W. L. Williams to secure said loan does not produce a sufficient sum to liquidate said amount of $8,057.00, and provided further that if the collateral brings more than the amount of $8,057.00, all over and above that amount shall become the property of said parties of the first part, and all under said amount of $8,057.00 shall be credited on said latter sum, and the balance shall be [laid by said parties of the first part in the same proportion said $25,000.00 was paid; in other words, the parties of the first part guarantee that said collateral shall bring at least $8,057.00, but if said collateral brings more than this amount, the overplus shall be the property of said parties of the first part in the proportion aforementioned.” The bank having sold at private sale the said collateral at sums sufficient to reduce the balance of Williams’ indebtedness of $8,057.00 to $6,-585.00, it brought suit against Barksdale for his proportionate share of the loss in the sum of $3,408.74, together with interest from date of sale. Barksdale admitted that he had entered into the said contract of guaranty, but contended that he was not bound by the private sale of the collaterals, made in accordance with the bank’s contract with Williams; that he was surprised that such collateral did not command a higher price; and that inasmuch as some of the purchasers of such collateral had not finally settled for the purchase price of the same, and that the bank still held the same as yet undelivered to such purchasers, the bank was not in position to enforce against him the terms of the guaranty. It appears, however, that in the suit by the bank credit was given to the defendant for the full sale price of the collateral, both collected and uncollected. The case was tried by a jury, and a verdict was returned for the plaintiff in the full amount sued for. The defendant filed a motion for a new trial on the general grounds alone. The motion was overruled, and he excepted.

1. The collateral contract of the bank with Williams expressly gave the bank the power to sell the collaterals at private sale without notice; and such a sale would result in a proper determination of the loss of the bank incident to the loan. It was with reference to this contract that the defendant contracted in becoming a guarantor. It could not be assumed that in making the contract of guaranty it was in contemplation of the parties that the bank must forfeit and renounce its rights and power of private sale of the collaterals given it under the Williams agreement.

2. So far as .the guarantors were concerned; they were credited with the full amount of the sale price of the collaterals; and the fact that the bank may not have collected the full amount under its sale does not adversely affect the defendant or give him the right to complain.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    16570.
    BUSSELL v. DANNENBERG COMPANY et al.

    1. An allegation that a certain person is the general manager of a corporation, when not qualified by anything else, amounts to an allegation that he is the alter ego of the company in the management of its corporate affairs.
    2. A complaint for damages against a corporation for an assault and battery upon the plaintiff by the company’s general manager, showing that the assault and battery was unlawful and that it occurred in the defendant’s office and place of business while the plaintiff was lawfully there as an invitee for the purpose of transacting, with the general manager, business which appertained to his agency, and while he was actually engaged in the transaction of such business, sets forth a. cause of action against the company.
    3. There is no presumption that an employer and an employee are operating under the provisions of the workmen’s compensation act where it does not appear that the employer regularly had in service as many as ten employees in the same business within this State.
    Decided November 17, 1925.
    Rehearing denied February 19, 1926.
    Action for damages; from Bibb superior court—Judge Malcolm D. Jones. May 7, 1925.
    C. Y. Bussell sued W. M. Collins and the Dannenberg Company, a corporation, for damages on account of an alleged assault and battery by Collins, the agent and general manager of the company. The third paragraph of the petition sets forth the act complained of as follows: “And your petitioner shows that in February, 1924, he was employed in the State of Alabama for a good salary, and that the Dannenberg Company, acting through W. M. Collins, its secretary and treasurer and general manager, desired your petitioner’s services in connection with the business of the Dannenberg Company, being operated in the City of Macon, said county and State, and induced your petitioner to leave the position he held and to move to Macon and take charge of one of the departments of'the business operated by the Dannenberg Company, at a salary of $300 per month and 2% of the net profits of said department; that your petitioner having prior thereto lived in Macon for many years, and having made many friends in and around Macon, he entered into a contract with the Dannenberg Company through the said W. M. Collins, general manager thereof, and entered upon his duties under said contract; that on June 21st, petitioner was notified by said company that he would be discharged on July 15, 1924; that your petitioner and the said Collins, secretary and treasurer and general manager of the Dannenberg Company, not agreeing as to the terms of said contract of employment, said Collins invited petitioner to come to his office on June 23rd; that upon entering the office of the said Collins, in the place of business of the said the Dannenberg Company, Collins said to petitioner, T got your letter in answer to mine, and I am surprised; you know you have no contract;’ but petitioner treated this as a difference of opinion or recollection, and took no exception thereto; whereupon the said Collins produced some books to show to petitioner that his department of the Dannenberg Company had not made any money, saying that he would close the department rather than have a loss, and again referred to the matter of contract between petitioner and the Dannenberg Company; he then said to petitioner, in substance, ‘State your side of the matter;’ petitioner replied, ‘Mr. Collins, I would like to ask one question: Why didn’t you mail the original letter confirming our trade?’ To which Collins replied, ‘If you say I did not mail you the original letter, you are a liar.’ Petitioner replied, ‘You are another;’ whereupon said Collins immediately struck petitioner a severe blow over his right eye while seated in a chair, and continued to strike him upon the head and around the eye. Petitioner attempted to get upon his feet, trying all the while to ward off the licks of the said Collins, and while Collins was thus continuing to strike and beat your petitioner on the head, face, and eye, they both fell upon the floor, where the said Collins continued to strike and beat your petitioner, hitting him twelve or fifteen severe blows upon the head, face, and eye, striking him a number of times after he had fallen upon the floor, and he struck him so frequently and so severely in the right eye that the eye, skin, and tissues around the eye were badly bruised, to the extent that the skin around his eye was so badly bruised that it became very dark in color and became swollen, and the eye was practically closed; and after he had so struck and beaten petitioner and was pulled off of petitioner by others near by and prevented from further striking and beating petitioner, he said to petitioner, ‘Come out in the hall and I will finish you;’ showing his purpose and intent to do your petitioner serious injury and bodily harm. All of which injury and damage done to your petitioner, as set forth, was without cause, and aggravated both in the act and in the intention.”

      The Dannenberg Company demurred to the petition, generally and specially. The court, without considering the merits of the special demurrer, passed an order sustaining the general demurrer and eliminating the Dannenberg Company as a party defendant, on the ground that the petition set forth no cause of action as to it; and to this order the plaintiff excepted.

      L. B. Moore, for plaintiff.

      Jones, Parle & Johnston, for defendants.
   Bell, J.

(After stating the foregoing facts.)

'Under the allegations of the petition the plaintiff’s injuries were not occasioned by the act of a fellow servant. It is alleged that Collins was the defendant’s general manager, and there is nothing to indicate that he did not have the general authority which would ordinarily be implied from such title. As was said by the Supreme Court in Raleigh &c. R. Co. v. Pullman Co., 122 Ga. 706 (50 S. E. 945) : “The terms ‘general manager’ are words of large meaning. In and of themselves they imply duties and responsibilities which would devolve upon a person having the management and control of the corporate affairs. By giving such a title to this officer the corporation holds him out to the world as its managing agent, its alter ego, as the person having general and supreme authority as the immediate representative of the directors in the conduct of the corporate affairs and in its dealing with the public.”

The defendant, by its general manager, invited the plaintiff to its office and place of business, and the plaintiff was thus entitled to the protection due to an invitee. Civil Code (1910), § 4420. The defendant’s duty of providing such protection was, under the facts alleged, to be discharged through its general manager, Collins, who, instead of complying with this duty, violated it. The assault and battery occurred in the defendant’s office and place of business while the plaintiff was lawfully there for the purpose of transacting with its general manager business which appertained to the latter’s agency and while the latter was actually engaged in the transaction of such business. As in Seaboard Air-Line Ry. v. Arrant, 17 Ga. App. 489 (2) (87 S. E. 714), “the difficulty which led to the assault and battery arose out of and in connection with the business of the company which the agent had authority to transact;” and if it was not justifiable, the defendant company, as well as the actual assailant, would be liable for the wrong so inflicted. In Mason v. Nashville &c. Ry. Co., 135 Ga. 741 (4) (70 S. E. 225), which was an action for damages against a railroad company for an assault and battery committed by its conductor upon a passenger, the Supreme Court said: “At the outset it is well to remember that in dealing with the general question of whether a master is liable for a willful tort of his servant, the doctrine of respondeat superior furnishes the basis for decision, if there are no statutory provisions on the subject, but that, in certain instances, there is a relation between the master and the injured person, out of which arises a duty of protection; and this duty is to be considered in addition to the general doctrine mentioned above. . . A failure to bear this in mind has caused some confusion and lack of harmony in decisions.” While in each of the cases last cited the suit was against a railroad company, one being a suit by an implied invitee and the other by a passenger, there was involved in each of them a duty of protection to the person injured, and the principles enunciated in each are applicable in the case now under consideration. Even the duty of protection which a carrier owes to its passengers is not different in character from that which the defendant owed the plaintiff as an invitee in the instant case, although there is a very wide difference in the degree of the respective duties. In Southern Ry. Co. v. Chambers, 126 Ga. 404 (4) (55 S. E. 37, 7 L. R. A. (N. S.) 926), the Supreme Court said: “When one goes to the agency of a corporation, the corporation owes him a duty to protect him from the wrongful acts of the agent in charge of the agency. But when one who is an agent of the corporation commits a tort at places other than the place of the agency, the company is not liable for the tort, unless it appears that it authorized the act or ratified it after its commission.” And see Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (2) (59 S. E. 189). What we have just said will sufficiently suggest the point of difference between the present case and the following cases relied on by the defendant in error: Louisville & Nashville R. Co. v. Hudson, 10 Ga. App. 169 (73 S. E. 30); Brown v. Smith & Kelly Co., 12 Ga. App. 214 (76 S. E. 1082); Central of Ga. Ry. Co. v. Stephens, 20 Ga. App. 546 (93 S. E. 175). See also Atlantic Coast Line R. Co. v. Thomas, 14 Ga. App. 619 (6) (82 S. E. 299); Daniel v. Excelsior Auto Co., 31 Ga. App. 621 (121 S. E. 692), and cases cited.

But the defendant company insists further that, irrespective of the other questions involved, as the employer and the plaintiff, as employee, were presumably subject to the workmen’s compensation act, the plaintiff’s claim would be cognizable only by the industrial commission. This contention, however, is untenable, for the simple reason that it does not appear that the defendant employer had in its service as many as ten employees in the same business within this State. There is no presumption that an employer and an employee are operating under the provisions of the compensation act where the employer has less than ten employees in the same business within this State, and there is no presumption as to how many employees a particular employer has. See § 15 of the workmen’s compensation act, Ga. L. 1920, p. 167. For this reason, we hold that it does not appear from the petition that the plaintiff and the defendant were operating under the compensation act, and in doing so we, of course, make no ruling as to what would be the rights of the parties in such a case. The petition set forth a cause of action against the Dannenberg Company and the court erred in sustaining the general demurrer of that defendant.

Judgment reversed.

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


author: Brovles, O. J. Bloodwokth:, J.,

text:
    16906.
    JOY FLORAL COMPANY et al. v. NORRIS.
   Brovles, O. J.

1. Where the owner of an automobile, which was damaged in a collision with a truck, brings suit for the damages against the owner of the truck, and where it develops during the trial that after the collision and prior to the filing of the suit an insurance company (which insured the plaintiff’s automobile against loss caused by collision) paid the plaintiff an amount equal to the full value of his automobile (the value it had immediately preceding the collision), and that the plaintiff has no beneficial interest in the action, although he retains the legal title to the automobile, the suit can not be maintained, unless the petition be amended and the action brought in the name of the holder of the legal title, for the use of the insurer. Atlanta Cadillac Co. v. Manley, 29 Ga. App. 522 (2), and citations.

2. Under the ruling stated above, the court erred in repelling the evidence set forth in grounds 1 and 3 of the amendment to the motion for a new trial. That evidence strongly tended to show that the owner of the automobile had been settled with in full by the insurance company, that he had received the full value of his property, and that he had no beneficial interest whatever in the pending suit; and it should have gone to the jury, with appropriate instructions from the court.

3. In view of the above-stated rulings, the other special grounds of the motion for a new trial are not passed upon, as the alleged errors are not likely to recur upon another trial.

Decided January 12, 1926.

Rehearing denied February 4, 1926.

Action for damages, from city court of Atlanta—-Judge Eeid. October 3, 1925.

Application for certiorari was denied by the Supreme Court.

William E. Arnaud, Jones, Evins, Moore & Powers, tor plaintiffs in error.

King, Spalding, MacDougald & Sibley, Estes Doremus, contra.

Judgment reversed.

Luke, J., concurs. Blood-worth, J., dissents.

Bloodwokth:, J.,

dissenting. I can not agree with the holding of my colleagues that “the suit can not be maintained unless the petition be amended and action brought in the name of the holder of the legal title, for the use of the insurer.”


text:
    16942.
    Peek v. The State.
    Decided January 12, 1926.
    Rehearing denied February 4, 1926.
    Aiding escape; from Cobb superior court—Judge Blair. October 31, 1925.
   Broyles, C. J.

1. Grounds 1 and 2 of the amendment to the motion for a new trial are without merit.

2. The evidence adduced to convict the accused not being wholly circumstantial, the court did not err in failing to charge the law of circumstantial evidence, as no written request for such a eharge was presented to the court.

3. Error is assigned upon the following charge to the jury: “He [the accused] offers evidence of good character,, and the court instructs you that in reaching a conclusion about this case you are to consider the evidence of good character along with all the other evidence in the case, and give to it whatever weight that you may believe that it is entitled to in arriving at a verdict in the case. The law says that such evidence is substantive evidence, and is entitled to just such weight as the jury sees fit to give it, along with the other evidence in the case.” This eharge was not erroneous, either because the court did not explain the statement, “The law says that such evidence is substantive evidence,” or because the court failed to eharge that evidence of good character “may of itself, by the creation of a reasonable doubt, produce an acquittal,” or for any other reason assigned. Keys v. State, 112 Ga. 392 (5) (37 S. E. 762, 81 Am. St. R. 63); Hill v. State, 18 Ga. App. 259 (1 a, b) (89 S. E. 351), and citations.

4. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Blood-worth, JJ., concur.

Application for certiorari was denied by the Supreme Court.

Fred. Morris, E. B. Moss, for plaintiff in error.

John 8. Wood, solicitor-general, contra.


text:
    16945.
    Smith v. The State.
    Decided January 12, 1926.
    Rehearing denied February 4, 1926.
    Conviction of making liquor; from Wilkes superior court-— Judge Perryman. October 5, 1925.

      Eugh F. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Broyles, C. J.

1. The first ground of the amendment to the motion for a new trial is too incomplete and defective to be considered by this court; and the other special ground is without merit.

2. The evidence amply authorized, if it did not demand, the defendant’s conviction of the offense charged.

Judgment affirmed.

LuJce and Bloodworth, JJ., concur.


text:
    16590.
    HECHINGER v. DINKLER HOTEL COMPANY.
    The alleged contract contains no obligation on the part of the plaintiff as a contracting party, and therefore the defendant’s promise to perform is without consideration. It is void for lack of mutuality, and„the court did not err in sustaining the demurrer to the petition.
    Decided January 14, 1926.
    Rehearing denied February 18, 1926.
    Complaint; from city court of Atlanta—Judge Reid. May 2, 1925.
    Application for certiorari was made to the Supreme Court.
    I. Hechinger sued the Dinkier Hotel Company for damages for an alleged breach of contract. _ A general demurrer to the petition was sustained, and the plaintiff excepted. The petition alleges that “petitioner entered into a contract with defendants in which they agreed to lease from Alfred D. Danziger and Leon Jacobs, through petitioner, a 450-room hotel in the city of New Orleans” for a stated period at a definite rental per month; that “he [petitioner] was acting in this transaction with defendant as a real-estate agent representing Danziger and Jacobs, who are the owners of the hotel site,” and that the defendant breached this contract, to the plaintiff’s damage in different amounts, set out in the three counts of the petition. The contract sued upon, which was attached to the petition as an exhibit, consisted of the following letter from the plaintiff to the defendant, and the defendant’s answer thereto :
    “December 23, 1922.
    “Mr. Carling L. Dinkier,
    “Vice-President and Manager, The Dinkier Hotels,
    “Atlanta, Ga.
    “Dear Mr. Dinkier: It is proposed to erect a 400-room hotel in the city of New Orleans, La., on a certain square in the second district of said city, said square being numbered 126, bounded by Canal, Iberville, North Rampart, and North Saratoga streets, and designated as lots A, B, 0, D, and E, according to sketch of survey, made by S. A. Calogne, C. E., Deputy City Surveyor, said lots measuring each 31 feet and 8 inches by a depth of 120, between parallel lines running through from Canal street to ArGade No. 2, as shown on said sketch and blue print. The proposed hotel is to have commercial stores in ground floor which are not to be included in rental of hotel. Said rental to accrue to owners of the land or holding company. The parties now having this land under option, pending making financial arrangements to purchase the. ground as well as building hotel, make»you the following proposition : They will lease to you said 400-room hotel at the rate of $30.00 per month per room over a period of twenty-five years, said lease to embody the usual clauses contained in hotel leases. As your architect states, it appears that it will be necessary for you to have the entire ground space of Lot C, and in addition a space on the ground floor and at the rear of spaces C, D, and E, including Arcade No. 2, of not less than 2200 to 2300 feet, that is for the proper service communication. Therefore, to obtain this space you are to pay an additional rental and exclusive of the hotel rental, the sum of fifteen thousand dollars ($15,000) over a period of twenty-five years. Your architect states that it will be necessary that stores occupying spaces A, B, C, D, and E, and Arcade No. 1, have not exceeding sixteen feet (16) high. Kindly advise me if you are willing to accept the above proposition.
    “Yours truly, .
    “I. Hechinger.”

      “December 23, 1922.
    “Mr. I. Heehinger,
    “Ansley Hotel, Atlanta, Ga.
    “Dear Mr. Heehinger: Answering yonr letter of the 23d instant relative to proposed hotel to be erected for us on square No. 128 in the city of New Orleans, we are willing to accept the proposition contained therein.
    “Yours truly,
    “The Dinkier Hotels,
    “By Carling L. Dinkier, Y.-Pres. & Gen. Mgr.”

      Herman Winsberg, Scott, Hornbuckle & Moore, for plaintiff.

      Herbert J. Haas, Hewlett & Dennis, for defendant.
   Stephens, J.

(After stating the foregoing facts.) The letter from the plaintiff to the defendant, which must be looked to as constituting the contract, purports to be the individual act of the plaintiff in his own name, and not as agent for Danziger and Jacobs mentioned in the petition, or for any one else. This letter contains no language whatsoever which can be construed as obligating the plaintiff to do anything. It makes no reference to the plaintiff’s alleged principals, Danziger and Jacobs, unless such Reference is contained in the word “they” or in the phrase “the parties now having this land under option.” It recites that “it is proposed to erect a 400-room hotel in the city of New Orleans” of a certain general description, upon certain described land, and that “the parties now having this land under option . . will lease to you said 400-room hotel,” etc. This indicates that performance is to be made by others than the plaintiff. If this language could be construed as indicating an obligation upon any one to lease to the defendant such hotel, nowhere does it appear that the plaintiff, the contracting party, undertakes to see that this obligation is carried out.

The petition expressly alleges that the plaintiff himself entered into the contract. It does not allege that Danziger and Jacobs, or the “parties now having this land under option,” or “they,” were parties to the contract. In view of this allegation that the plaintiff himself was the contracting party, and of the fact that from an inspection of the plaintiff’s letter, which is the contract sued on, it appears that the plaintiff, and not Danziger and Jacobs, was the contracting party, the allegation in the petition that the plaintiff acted as real-estate agent representing Danziger and Jacobs can not be construed as an allegation that the contract was made by Danziger and Jacobs through the plaintiff as their agent. The contract not having been made in behalf of a principal, the plaintiff can not maintain the suit upon the theory that he is an agent whose agency is coupled with an interest.

Since it appears that the plaintiff was not bound by the alleged contract, the defendant’s promise to perform is without consideration. The alleged contract, therefore, is void for lack of mutuality, and the suit was properly dismissed on demurrer.

Judgment affirmed.

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


text:
    16603.
    Morrow et al. v. Fitzpatrick.
    Decided January 14, 1926.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. May 21, 1925.

      John W. Morrow, for plaintiffs in error.
    Anderson, Rountree & Grenshaw, contra.
   Jenkins, P. J.

Where a purchaser of property executes promissory notes in separate amounts, maturing upon separate dates, but providing that upon a described default in payment all of said notes shall be due and collectible, such separate notes, even though growing out of an entire and single sale contract, are by agreement of the makers made to constitute separate and distinct causes of action, and the plaintiff, in suing upon any of the notes, is not compelled to sue upon all of them in one suit. Any number of such notes may be joined in one suit, provided the sum thereof does not exceed the jurisdictional amount of the court. Starnes v. Mutual Loan & Banking Co., 102 Ga. 597, 598 (5) (29 S. E. 452).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16605.
    Jones v. McCowen.
   Jenkins, P. J.

1. A plaintiff in trover must recover on the strength of his own title and right of possession to the property involved, and not that of another. Where a minor child labors and earns money, the presumption is that the proceeds of his labor belongs, to his father, if living; and where it is claimed that such in fact belongs to the minor, that presumption must be overcome by proof of the fact that the father has, either expressly or impliedly, manumitted the minor so as to allow the proceeds of the labor to go to the minor. The plaintiff minor, not having overcome such presumption, did not show title or right of possession to the property sued for. See, in this connection, Wolf v. East Tennessee &c. R. Co., 88 Ga. 210 (2) (14 S. E. 199); Smith v. Smith, 112 Ga. 351 (3) (37 S. E. 407); Culberson v. Alabama Construction Co., 127 Ga. 599 (2) (66 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507); Southern Railway Co. v. King, 136 Ga. 173 (1, 2) (70 S. E. 1109); Mock v. Neffler, 148 Ga. 25 (3), 27 (95 S. E. 673) ; Richter v. Virginia-Carolina Chemical Co., 1 Ga. App. 344 (2) (57 S. E. 939); Civil Code (1910), § 3021; 29 Cyc. 1655 (18).

Decided January 14, 1926.

Trover; from Bibb superior court—Judge Malcolm D. Jones. May 33, 1935.

Jones, a minor, brought trover against a constable for a bull which the constable had seized and was holding under the levy of a mortgage-foreclosure fi. fa. against the plaintiff’s father, and also under the levy of a distress warrant against the father. The testimony of the plaintiff was to the effect that he, when about 13 or 14 years old, worked and earned the money with which he bought the bull. It did not appear that his father had manumitted him, either expressly or impliedly. From the evidence of the defendant it appeared that at the time of the levy the bull was in the -pasture of the father.

Hubert F. Bawls, for plaintiff.

J. P. Burnett, for defendant.

2. A levying officer is not guilty of tortious conduct or conversion with reference to property which he levies upon and holds by virtue of such levy, under special process by the terms of which he is expressly commanded to levy upon and seize the very property involved. Such special process, if it appear fair and regular on its face, will be his protection in the premises. The constable, at the time the trover suit was instituted, having the property sued for in his possession under the levy of a chattel mortgage fi. fa., expressly describing such property, which appeared fair and regular on its face, was not guilty of a conversion, and for this additional reason was not liable in an action in trover. See, in this connection, Chipstead v. Porter, 63 Ga. 220; Jefferson v. Hartley, 81 Ga. 716, 718 (9 S. E. 174); Haslett v. Rodgers, 107 Ga. 239, 245 (33 S. E. 44) ; Williams v. Inman, 1 Ga. App. 321 (2), 324 (57 S. E. 1009) ; Geer v. Thompson, 4 Ga. App. 756 (2) (62 S. E. 500) ; Dunlap-Huckabee Auto Co. v. Central Georgia Automotive Co., 31 Ga. App. 617, 620 (122 S. E. 69).

Judgment affirmed.

Stephens and Bell, JJ., concur.