author: Stephens, J.

text:
    18756.
    Clay et al. v. Dobbs, administratrix.
   Stephens, J.

1. A petition brought in the name of L. B. Carnes for the use of Mrs. Ida Dobbs as administratrix, etc., in a suit upon a promissory note payable to L. B. Carnes, is amendable by striking therefrom the name of L. B. Carnes and “allowing the case to proceed in the name of Mrs. Ida Dobbs as administratrix,” etc., where it appears, from the allegations in the amendment offered, that, by reason of a transfer and indorsement of the note by L. B. Carnes to the intestate in the latter’s lifetime, the legal title to the note was in the intestate, and that Mrs. Ida Dobbs as administratrix of the estate of the intestate has the legal right to maintain the suit. It is immaterial that in the amendment offered L. B. Carnes is erroneously described as the “usee.” L. B. Carnes, although erroneously described as “usee,” is nevertheless, by the amendment, stricken from the suit. Wilson v. First Presbyterian Church, 56 Ga. 554; Woodbridge v. Drought, 118 Ga. 671 (45 S. E. 266).

2. The suit having been amended so as to proceed in the name of the administratrix, and the only defense made by the defendants being that the note had been paid to L. B. Carnes, the payee, while he was the holder of the legal title thereto and entitled to receive payment, which payment was made without any notice to the defendants that at the time the plaintiff’s intestate, to whom the note had been transferred as collateral security for a debt, without indorsement, had possession of the note, with an equitable title thereto, and the evidence presenting an issue of fact as to whether, at the time the note was transferred and delivered by Carnes to the plaintiff’s intestate, the note was indorsed by Carnes, and therefore an issue of fact as to whether at the time of payment to Carnes he or the plaintiff’s intestate held legal title to the note, the jury was authorized to find that at the time of payment the plaintiff’s intestate held the legal title to the note and that the payment to Carnes did not discharge the defendant’s liability on the note. The verdict for the plaintiff was therefore authorized.

Decided November 16, 1928.

William Atlaway, 11. B. Moss, for plaintiffs in error.

Mozley & Gann, contra.

Judgment affirmed.

Jenloins, P. J., amd Bell, J., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    18762.
    JAMES v. FITE.
    Decided November 16, 1928.

      Pierce Brothers, Lon Lamar Fleming, for plaintiff.

      Fleming & Fleming, for defendant.
   Jenkins, P. J.

1. Under the provisions of section 23 of the workmen’s compensation act as amended (Ga. L. 1920, pp. 167, 180; Ga. L. 1923, pp. 92, 93), no compensation is payable on account of an injury unless notice of the accident is given to the employer, his agent, representative, foreman, or the immediate superior of the injured employee, either in writing or orally, within thirty days after the accident, or unless it can be shown that the employee had by reason of physical or mental incapacity, or by fraud or deceit, been prevented from doing so, or that the employer, his agent, representative, foreman, or the immediate superior of the injured employee had knowledge of the accident, or unless a reasonable excuse is made, to the satisfaction of the commission, for not giving such notice, and it is reasonably proved, to the satisfaction of the commission) that the employer had not been prejudiced thereby.

2. Whether or not the failure to give such notice comes within one of the exceptions set forth by the statute, so as to prevent such failure from operating as a bar to an award of compensation, is a question of fact, to be determined by the industrial commission, and its finding upon such question of fact, if supported by the evidence, is, in the absence of fraud, conclusive. Maryland Casually Co. v. England, 160 Ga. 810, 812 (129 S. E. 75).

3. In the instant case it appears, without dispute, that notice of the accident to the claimant, on account of which he sought compensation, was not given to the employer until nearly three months after the occurrence; there is no evidence tending to show that the employer, or his agent, representative, foreman, or the immediate superior of the claimant, had actual knowledge of the accident; and it is not shown that any sort of notice was’ given to the employer, or his agent, representative, foreman, or the immediate superior of the employee, until the written notice was served upon the employer about ninety days after the accident. There is some evidence from which the industrial commission might have found that during at least a portion of the time elapsing between the date of the injury and the notice to the employer, the claimant might have been prevented from giving the notice by reason of physical or mental incapacity, but the evidence does not demand such a finding. Accordingly, since the finding of fact of the industrial'commission is supported by some evidence, this court can not disturb its order denying compensation to the claimant upon the ground that his claim is barred by reason of his failure to give the notice required by the statute.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18771.
    Gifford v. Latimer et al.

   Jenkins, P. J.

This was a suit by a real-estate broker for commissions. See Latimer v. Gifford, 37 Ga. App. 1 (138 S. E. 859). The jury found for the defendants. No error of law is complained of, and the plaintiff’s motion for a new trial is based solely upon the usual general grounds. The jury being authorized by the evidence to find that the plaintiff had been given a reasonable time in order to effect a sale under the contract of listment, which was indefinite as to the time of his employment, and that after such reasonable time had elapsed and before any purchaser had been procured and presented, the property had been withdrawn from the hands of the broker, the verdict in favor of the defendants was not without evidence to support it.

Decided November 16, 1928.

William, Attaway, E. B. Moss, for plaintiff.

J. E. Mozley, George D. Anderson, for defendants.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    Collins v. Moore, administratrix, et al., and vice versa.

    Decided November 16, 1928.

      P. M. Anderson, for plaintiff in error.

      A. S. Way, John W. Sheppard, contra.
   Jenkins, P. J.

1. Under the law of' this case as enunciated by the decision of this court upon a former review thereof, .and under the evidence, which was substantially the same upon the controlling issues as on the former trial, the verdict in favor of the plaintiff was demanded, and the court did not err in so directing. Moore v. Collins, 36 Ga. App. 701 (138 S. E. 81).

2. It appears without dispute from the testimony of the defendant that he had held possession of the premises in dispute for two years after the institution of the eviction proceedings on account of nonpayment of rent due under a written contract between the parties, fixing the monthly rental to be paid to the plaintiff by the defendant. The contention of the defendant that the direction of a verdict in favor of the plaintiff for double rent for that period was unauthorized, in that no proof was submitted to establish the amount which plaintiff was entitled to recover, is therefore without merit.

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

Stephens and Bell, JJ., concur.


text:
    18778.
    Cason v. Jordon.
   Jenkins, P. J.

1. “An imjfiied warranty against defects in the thing sold is excluded by a provision in the written contract of sale that the vendor does not warrant the property except as to title.” Payne v. Chai Max Motor Co., 25 Ga. App. 677 (104 S. E. 453); Harrell v. Holman, 21 Ga. App. 159 (93 S. E. 1021). P

Eli B. Hublard, for plaintiff in error.

George II. Carswell, contra.

2. Where an automobile is sold and delivered under a written contract containing the provision that “the vendor does not make any warranty of said property, either express or implied, except that the title to same is in vendor and free from encumbrance,” a subsequent promise on the part of the vendor to furnish certain'parts to make repairs to the automobile, and to warrant the property as thus repaired to give entire satisfaction, upon the vendee agreeing to pay the purchase-money notes already given under the written contract of sale, is a mere nudum pactum, and unenforceable. Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 62 L. R. A. 93, 97 Am. St. R. 177); Willingham Sash & Door Co. v. Drew, 117 Ga. 850 (45 S. E. 237).

3. Under the principles of law set forth above, the court did not err in directing a verdict in favor of the plaintiff vendor, suing in trover to recover the property sold under a contract retaining title in the vendor, for the balance due on the purchase-price.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18726.
    DAILEY v. YORK.
    Decided November 17, 1928.

      Paul L. Lindsay, for plaintiff in error.

      J. L. Mayson, C. 8. Winn, contra.
   Jenkins, P. J.

This was a petition for certiorari to review a judgment of the police committee of the general council of the City of Atlanta, finding the plaintiff in certiorari, a police officer of the city, guilty of charges preferred against him, and dismissing him from the police force. The only assignment of error contained in the petition for certiorari is that the verdict and judgment of the police committee was not warranted by the evidence. The police committee answered, admitting the allegations of the petition as to what occurred on the trial, and the correctness of the brief of evidence attached to the petition, but denying that the verdict and judgment were unauthorized, and setting up conclusions reached by the committee from the evidence. The plaintiff in certiorari excepted to the answer and the portions thereof setting up the conclusions of the committee, and traversed the paragraphs of the answer wherein the committee denied the allegations of the petition as to its judgment not being authorized by the evidence. The judge of'the superior court disallowed the exceptions and the traverse, and overruled the certiorari.

1. The office and purpose of exceptions to the answer of a trial magistrate to a petition for certiorari, and of a traverse thereto, are to perfect the answer so as to present to the reviewing court what actually occurred upon the trial. Chandler v. Baggett, 13 Ga. App. 333 (79 S. E. 179); Ethridge v. Taylor, 36 Ga. App. 609, 610 (137 S. E. 641). Accordingly, where the answer of the inferior tribunal admits the truthfulness of the allegations of fact contained in the petition for certiorari, and thus correctly presents to the reviewing court what occurred on the trial, it can not be considered harmful error to disallow exceptions and a traverse by the plaintiff in certiorari which merely raise immaterial questions as to conclusions of law set forth by the answer, even though such conclusions were improperly contained in the answer. White v. Mandeville, 72 Ga. 705 (2).

2. The evidence before the police committee authorized its finding, and since it has the approval of the superior court it can not be here set aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    18732.
    Bainbridge Coca-Cola Bottling Co. v. Miller.
   Bell, J.

1. In this suit to recover damages for an illness which the plaintiff claimed to have suffered as a result of drinking a beverage sold by the defendant and containing a poisonous foreign substance which caused the plaintiff to become sick and nauseated, there was some evidence to warrant the inference of negligence on the part of the defendant, as charged in the petition, and it can not be held, as a matter of law, either that this inference was conclusively rebutted or that it indisputably appeared that the plaintiff, by ordinary care, could have avoided the consequences of the defendant’s negligence after it was, or should have been, discovered by him.

Decided November 17, 1928.

A. B. Conger, for plaintiff in error. P. D. Rich, contra.

2. The fact that the trial judge, during his charge to the jury and while stating the contentions of the parties, misread the allegation of the petition that plaintiff “was unable to eat anything for several hours,” by substituting for “hours” the word “days,” did not constitute such error as to require a new trial. Under the facts as they appear in the record, the jury could not have been misled by such verbal inaccuracy, resulting evidently from a mere slip of the tongue. Turner v. Elliott, 127 Ga. 338 (4) (56 S. E. 434).

3. In determining whether an excerpt from a charge is subject to the criticism that it contains an expression or intimation of opinion as to what has or has not been proved, the excerpt should be considered in the light of the entire charge. Upon application of this principle the extract from the court’s charge in this case, as excepted to upon the ground that it expressed an opinion on the facts, did not constitute reversible error. Olliff v. Howard, 33 Ga. App. 778, 782 (127 S. E. 821); Seaboard Air-Line Ry. Co. v. Shensky, 36 Ga. App. 163 (4) (136 S. E. 178).

4. Fairly construed, the court’s charge did not submit to the jury an issue as to whether the beverage contained some other poisonous matter than that alleged in the petition.

5. There was no merit in any ground of the motion for new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., ooneur.


text:
    18737.
    Peck v. Calhoun, trustee.
   Bell, J.

1. Under section 3653 of the Civil Code of 1910, all choses in action arising upon contract may be assigned in writing so as to vest the title in the assignee. For this purpose no special form is necessary, but the assignment will be sufficient if its language discloses the intention of the owner to transfer his rights to the assignee. Southern Mutual Life Ins. Asso. v. Durdin, 132 Ga. 495 (64 S. E. 264, 131 Am. St. R. 210; Myers v. Adams, 14 Ga. App. 520 (81 S. E. 595). Hence, an indorsement on a non-negotiable promissory note, “Pay to acct. Isabella L. Calhoun, Trustee,” signed by the payee therein, was, when accompanied by delivery, sufficient to authorize such transferee to bring suit thereon against the maker. See further, in this connection, National Bank of Columbus v. Leonard, 91 Ga. 805 (18 S. E. 32); Shelley v. Baker, 125 Ga. 663 (54 S. E. 653).

Decided November 17, 1928.

2. An order signed by the payee, upon the back of a note, directing payment to a named person, would, as respects its sufficiency as an assignment of the note, be the equivalent of an order to pay to “the account” of such person; either form, when accompanied by a consistent delivery of the note, being sufficient to constitute a valid assignment of that instrument, with the right in the assignee to maintain a suit upon the note in his own name. It follows that there was no material variance -between the copy of the cause of action as attached to the petition and that shown by the evidence upon the introduction of the note with the assignment thereon.

3. Section 3224 of the Civil Code, having reference to conveyances and transfers in fraud of “creditors and others,” can not be invoked by one who was not a creditor of the party whose conveyance or transfer was attacked and who held no rightful claim or demand against him, but who was, on the contrary, a mere debtor of such party. Gunn v. Chapman, 166 Ga. 279 (142 S. E. 873); Massell v. Fourth National Bank, 38 Ga. App. 601 (144 S. E. 806); Mobley v. Merchants & Planters Bank, 157 Ga. 658 (3) (122 S. E. 233); Mitchell v. Langley, 148 Ga. 244, 246 (96 S. E. 430).

4. Where the payee of a promissory note, after assigning the note to a third person, was sued by one of his own creditors, who caused a garnishment to be issued and served upon the maker of the note, but where, before the maker filed his answer in the garnishment proceeding, he was given notice by the assignee of the fact of such assignment, he acted at his peril when, in making answer to the summons of garnishment, he admitted an indebtedness to the payee; and when sued by the assignee on the note executed by himself he could not set up as a defense the payment which he had been required to make to the payee’s creditor because of such admission in his answer in the garnishment proceeding. Civil Code (1910), § 3653; Georgia State Bank v. Harden, 32 Ga. App. 300 (3), 306 (124 S. E. 68); Tarver v. Jones, 34 Ga. App. 716 (131 S. E. 102); Sasser v. Campbell, 9 Ga. App. 177 (1) (70 S. E. 980); Rutherford v. Fullerton, 89 Ga. 353 (2) (15 S. E. 471).

5. On application of the above-stated principles it would have been error for the court to sustain any of the assignments of error contained in subparagraphs (a), (b), (a), [d), and (e) of paragraph 6 of the petition for certiorari, and, this being true, it is immaterial to the plaintiff in error that the answer to the writ failed to verify these assignments and that the court struck a traverse to that part of the answer having reference thereto.

6 The answer to the petition for certiorari having denied the allegations contained in subparagraph (f) of paragraph 6, and the denial not having been traversed, such allegations presented no matter for decision either in the superior court or this court.

7 While the note sued on in this ease contained no words of negotiability and was for this reason not a negotiable instrument (Ga. L. 1924, p. 126, § 1 (4)), it was yet duly assigned to the plaintiff, against whose right to recover no sufficient defense was shown by the evidence. The judgment in favor of the plaintiff was demanded and no material error appears. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.

W. A., G. M. & L. S. James, for plaintiff in error.

Shelfer & Dunaway, contra.


text:
    18746.
    Callahan v. Harwell.
    Decided November 17, 1928.
   Jenkins, P. J.

1. “Where, by direction of the owner of a certain fund, it was placed, in the hands of another to be paid to a third party, the bailee not having promised to pay the money to such third party, and the latter not having authorized it to be placed in the bailee’s hands, the fund in the hands of the bailee, before payment or promise to pay by him, was the money of the bailor,” and, while subject to garnishment as against the bailor, was not subject to garnishment as against the third person for whom the money was intended. Cox v. Reeves, 78 Ga. 543 (3 S. E. 620); Bostwick Supply Co. v. Hodgson Colton Co., 28 Ga. App. 691, 693 (113 S. E. 37).

2. In this case the fund sought to be subjected to the plaintiff’s claim by process of garnishment appears, without dispute, to have been placed in the hands of the garnishee by the City of Atlanta, to be paid to the defendant in fi. fa., an employee of the City of Atlanta, as compensation for services rendered to the city. It does not appear that the garnishee was authorized or directed by the defendant in fi. fa. to collect the funds from the city and hold them for the defendant, or that at any time the relation of debtor and creditor existed between them. Accordingly, the judge of the municipal court did not err in finding against the plaintiff’s traverse to the answer of the garnishee, and it was not error for the judge of the superior court to refuse to sanction the plaintiff’s petition for certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.

N.oah J. Slone, for plaintiff. W. Q. Munday, for defendant.


text:
    18748.
    Raymond Boating and Fishing Club v. Brewer.
   Bell, J.

1. Upon a fair and reasonable construction of the petition in this case, it appears to be a suit to recover damages for the maintenance of a continuing, abatable nuisance, and in such a case the plaintiff may recover such consequential damages as he may have sustained within four years before the bringing of the action. Gabbett v. City of Atlanta, 137 Ga. 180 (73 S. E. 372); Athens Mfg. Co. v. Rucker, 80 Ga. 291 (4 S. E. 885).

2. The evidence did not demand the inference that the effect of the nuisance was such as to destroy entirely and permanently the fertility of the plaintiff’s land more than four years before the filing of the suit, proof of this fact being a matter of defense where it does not affirmatively appear from the plaintiff’s own evidence. Danielly v. Cheeves, 94 Ga. 263 (3) (21 S. E. 524); Ketron v. Sutton, 130 Ga. 539 (2) (61 S. E. 113); City of Macon v. Roy, 34 Ga. App. 603, 608 (130 S. E. 700).

3. Though perhaps weak, there was some evidence to authorize the inference that the alleged wrongful acts complained of were the proximate cause of the damages claimed. It can not be said that the verdict in the plaintiff’s favor was absolutely without evidence to support it. The court did not err in overruling the defendant’s motion for a new trial, based upon the general grounds only.

Decided November 17, 1928.

Hall & Jones, for plaintiff in error.

Post & Arnold, contra.

Judgment affirmed.

Jenkins, P. J., a/nd Stephens, J., eoneur.


text:
    18751.
    ATLANTA & LOWRY NATIONAL BANK v. FIRST NATIONAL BANK OF CARROLLTON.
    Decided November 17, 1928.

      Poole & Fraser, for plaintiff in error.

      Walhins, Asbill & Watlcins, contra.
   Bell, J.

First National Bank of Carrollton sued Atlanta & Lowry National Bank upon a cheek, in the municipal court of Atlanta. A nonsuit was affirmed by the appellate division of the court, the judgment was reversed by the superior court on certiorari, and the defendant brought the case to this court.

The cheek was drawn on the defendant bank by Dr. Quillian and, after certification, came into the possession of the plaintiff bank. The plaintiff bank claimed to have acquired the check by indorsement, while the defendant bank contended that the purported indorsement was unauthorized; and this was the sole issue upon the trial.

Dr. Quillian, the maker, testified as follows: “During the summer of 1926 I had various conferences with Mr. Wilson and Mr. Sims in regard to purchasing a Stutz motor-car from the Stutz Atlanta Motor Company. I signed a contract some time in July, 1926, for the delivery of a specified car. For some reason I could get no delivery of this car, although I made several requests of Mr. Wilson and Mr. Sims for delivery. On the 14th of October, 1926, 1 telegraphed the Stutz Motor-Car Company of America Inc., at Indianapolis, and they telegraphed back that their representative was in Atlanta and for me to see him. I saw the representative of the Stutz factory who was in Atlanta, and I signed a new contract with the Stutz Atlanta Motor Company which called for a cash payment of $500. I gave a check payable to the Stutz Motor-Car Company of America Inc., to Stutz Atlanta Motor Company as payment of the $500 referred to in the contract made on the same date with the Stutz Atlanta Motor Company. This check was written on a blank which was furnished by Stutz Atlanta Motor Company. I made this check payable to the Stutz Motor-Car Company of America Inc., on purpose, as I had had difficulty in getting a delivery of a car by the Stutz Atlanta Motor Company and had heard that the Stutz Atlanta Motor Company was in a very shaky financial condition. This check was delivered to Stutz Atlanta Motor Company as payment under the contract signed with the Stutz Atlanta Motor Company. Later I got a car direct from the Stutz Motor Car Company of America Inc., after the Stutz Atlanta Motor Company had failed and the agency had been withdrawn from them. There were only two contracts signed by me for the delivery-of a Stutz automobile. Both were with the Stutz Atlanta Motor Company; one was dated some time in July, 1926, and the other October 14, 1926. The check here in question was given for payment under the contract signed Ocober 14, 1926, with the Stutz Atlanta Motor Company. This check was left with the latter company. . . I did not receive a car under the contract with the Stutz Atlanta Motor Company dated July, 1926, nor under the contract dated October 14, 1926, but finally got a car direct irom the factory after telegraphing them and seeing their representative in Atlanta.”

The contract of October 14, 1926, was introduced in evidence and contained a recital of a cash payment of $500.’ The agreement further provided that in case the purchaser should make default or cancel the order, the seller might as an option retain as liquidated damages “the above cash payment.” The check referred to by Dr. Quillian, the instrument in suit, was introduced in evidence, and was as follows:

“Oct. 14, 1926.
“Atlanta & Lowry National Bank
“ (Bank on which customer wishes check drawn)
■ “Whitehall Street Branch
“Pay to the order of Stutz Motor Car Co. of America, Inc., (company through which sale is made) five hundred and 00/100 dollars. $500.00.
(S) “W. Earl Quillian
“986 Ponce de Leon Ave.”

The Stutz Atlanta Motor Company presented the check to the drawee, the defendant bank, and obtained certification as follows:

“Certified when properly indorsed. No. 21186.
“October 15, 26. Atlanta & Lowry Natl. Bank,
“D. B. De Saussure, Asst. Cashier.”

Ered S. Wilson, who had acted for the Stutz Atlanta Motor Company in making the contract for the sale of the car, and who appears to have been the manager of that company, then indorsed the check in the name of the payee and also in the name of his own company, and negotiated it to the plaintiff bank for value, the indorsement being in form as follows:

“Stutz Motor Car Co. of America, Inc.
“Stutz Atlanta Motor Co.
“By Ered S. Wilson, State Distributor.”

The plaintiff placed the amount of the check to the credit of Stutz Atlanta Motor Company, “which amount the Stutz Atlanta Motor Company has checked out.” The plaintiff presented the check to the defendant in due course and, payment being refused, the present action followed.

We think that under the facts disclosed the plaintiff was entitled to recover, and hence will hold that the superior court prQperly sustained the certiorari and remanded the case for trial.

In paragraph 3 of section 9 of the uniform negotiable instruments law (Ga. L. 1924, p. 126, Park’s Annotated Code, Supp. 1926, § 4269 (9), Michie’s Ga. Code (1926), § 4294 (9)), it is provided that an instrument is payable to bearer when it is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable; and it is the general rule that a note or bill which is payable to bearer is negotiable by delivery, without indorsement. The check involved in this case was payable to a fictitious person within the meaning of the law. While the payee was named as Stutz Motor Car Company of America Inc., and while this was the name of an existing person, yet that company had no connection whatsoever with the transaction resulting in the execution and delivery of the check, and is, as to that matter, to be treated as a nonentity. Although it was testified by Dr. Quillian that he purposely made the check payable to the manufacturer because of some doubt that had been engendered in his mind as to the solvency of the local dealer with whom he made the contract of purchase, this intention remained a secret in his own mind, and the effect of the instrument which he then made and put into circulation must be determined by his intention as expressed in the words of the written agreement (of which the check was a part), construed in the light of the attendant and surrounding circumstances. Civil Code (1910), §§ 4266, 4268.

The words “fictitious person,” as used in the statute, are not limited to “persons” nonexisting. If the person named as payee has no connection with the instrument and no right whatsoever under it, and if this was the intention of the drawer or maker, it is immaterial whether the name of such payee was that of an existing person or of a fictitious being. This is but a restatement of what has been held by numerous other courts, and expresses the generally accepted doctrine.

Since the check was given to coyer the cash payment on the contract between Dr. Quillian, the maker, and Stutz Atlanta Motor Company, the local dealer, to which contract there was no other party, there could have been no fair contention that the check should be actually and in fact payable to Stutz Motor Car Company of America Inc., although that company was named as payee. There were only two parties to the sale agreement, and these alone were the parties to the check. In these circumstances it might have been that no holder of the check could ever have obtained the indorsement of the company which appeared as payee. No consideration flowed from that company for the making of the check, and it had no property or interest therein. It could not have recovered the check from the possession of any other person, and in the absence of some new consideration any indorsement that it might have made would have been voluntary, or an indorsement for accommodation only. And yet it was the intention of the maker that the check should pass as a negotiable instrument and be paid by the bank on which it was drawn. Therefore, it appears conclusive that the right to indorse the check in the name of the payee as well as in its own name was in Stutz Atlanta Motor Company, if an indorsement by any one was necessary.

The check having been certified, the maker was discharged, and there resulted a new contract whereby the bank became obligated to pay the proceeds to the holder on demand. Ga. L. 1924, p. 126, §§ 188, 189; Adams v. Manufacturers’ &c. National Bank, 63 Misc. 403, 116 N. Y. S. 595. The only question is, to whom should the payment be made. If there is any failure of consideration the maker must look to the local dealer, the person agreeing to sell him the automobile, as no other person appears to have been affected with notice. The defendant bank has $500 which on certification of the check it must have set aside for someone. Who is the right and proper claimant? Not the expressed payee, Stutz Motor Oar Company of America Inc., for that company, so far as appears, is absolutely unconcerned; not Stutz Atlanta Motor Company, for this company has conveyed its rights to the plaintiff, First National Bank of Carrollton; and obviously not Dr. Quillian, for he was the maker, and it was the result of his order that the money was set aside for another. There is no other possible claimant to be mentioned. From this examination it is clear that First National Bank of Carrollton is the only proper claimant, and that its right to payment is not subject to any conditions that have not been met.

The check having been duly indorsed, it is unnecessary in the present case to determine whether under paragraph 3 of section 9 .of the negotiable instruments law it might have been negotiated by delivery, — that is, whether an indorsement was necessary in order to pass title of the payee.

There is possibly another theory upon which the plaintiff should be held entitled to recover. Section 43 of the negotiable instruments law (Ga. L. 1924, p. 126) provides that where the name of the payee is wrongly designated or misspelled, he may indorse the instrument as therein described, adding, if he thinks fit, his proper signature. It would seem that under the facts of this case it should be held that the payee was the Stutz Atlanta Motor Company, and that its name was wrongly designated. In this view, it would again result that the indorsements made upon the check were legal and proper. First National Bank v. People’s National Bank, 136 Va. 276 (118 S. E. 82, 36 A. L. R. 736); Integrity Trust Co. v. Lehigh Ave. &c. Bldg. & Loan Asso., 273 Pa. 46 (116 Atl. 539, 21 A. L. R. 1554).

It is the general rule that where a note or bill is executed to one in other than his real name he may recover by showing that he was the payee intended. 8 C. J. 180; Epting v. Jones, 47 Ga. 622.

On the question of the power of the judges of the municipal court of Atlanta to grant nonsuits, see Shippey v. Owens, 17 Ga. App. 127 (2) (86 S. E. 407); Murphy v. Sulzberger, 17 Ga. App. 686 (87 S. E. 808); Ga. L. 1916, p. 199, section 4.

Judgment affirmed.

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


text:
    18774.
    GEORGIA RAILROAD AND BANKING COMPANY et al. v. STANLEY, administrator, et al.

      Decided November 17, 1928.

      Hawes Cloud, J. A. Beazley, Miles W. Lewis, for plaintiffs in error.

      Edgar Latham, McElrealh & Scott, Horace M. Holden, John B. Gamble, contra.
   Bell, J.

The exception in this case is to the overruling of a general demurrer to the plaintiff’s petition.

E. J. Yandiver, a minor, by one as next friend (for whom was later substituted a guardian, his mother being dead), brought suit against Georgia Eailroad and Banking Company, Louisville & Nashville Eailroad Company, and Atlantic Coast Line Eailroad Company, to recover damages for the alleged wrongful death of petitioner’s father, who was killed at a grade crossing on a line of railroad owned by the first named defendant and operated by the other defendants as lessees. The petition made the following case: The homicide occurred in a collision between a train operated by the lessees and an automobile in which the decedent was riding. The train was “engaged in intrastate commerce within the limits of the State of Georgia.” The decedent’s death was caused entirely by the negligence of the defendants, in that the engineer in charge of the train and the engine thereof failed to blow the whistle on approaching the crossing and failed to keep and maintain a constant and vigilant lookout along the track ahead of the engine as required by law. In approaching the crossing the train passed through a cut which rendered the crossing hazardous to travelers on the highway, and the manner in which the train was being operated constituted a menace to any person who chanced to be upon the track at such public crossing. The decedent was free from fault and was in the exercise of ordinary care for his own protection, and could not by ordinary care have avoided the consequences of the negligence of the defendant. Decedent, at the time of his death, was capable of earning and was earning $1500 per year, and his life-expectancy was 50 years. Petitioner, being the only surviving child, is entitled to recover the full value of the life of his father, and claims damages in the sum of $50,000.

The grounds of the demurrer were: (1) The petition sets forth no cause of action; (3) the petition shows on its face that the decedent’s death was caused by his own negligence and want of ordinary care for his own safety, in that he did not stop, look and listen for the approach of a train before entering upon the railroad crossing.

For a reversal of the judgment overruling the demurrer counsel for the plaintiffs in error rely mainly upon the recent decision of. the Supreme Court of the United States in Baltimore & Ohio R. Co. v. Goodman, 375 U. S. 66 (48 Sup. Ct. 24), in which it was held that a person attempting to drive an automobile over a railroad crossing with which he is familiar is so negligent as to bar a recovery for his death from being struck by a train, where he does not stop and look, and if necessary, leave his vehicle in order to make sure that the crossing is safe. From a reading of the briefs we infer that except for that decision the plaintiffs in error would not have brought the present ease to this court. At any rate, if we consider only the decisions of our own courts, it is very plain that the petition sets forth a cause of action. In other words, if we are to decide the case according to the laws of Georgia as hitherto interpreted by the courts of this State, there would be no difficulty in affirming the judgment overruling'the demurrer. We will first examine the ease briefly from that standpoint, and will then consider it in the light of the Goodman case.

The allegations of the petition sufficiently charge negligence as against the defendants. Under the law of this State it is mot negligent per se for one not aware of the approach of a train to attempt to cross the railroad-track without stopping, looking, or listening. Davis v. Whitcomb, 30 Ga. App. 497 (5) (118 S. E. 488). Even were the rule otherwise, it does not appear from the instant petition whether or not the-decedent failed to stop, look, or listen, and, in the absence of anything to the contrary, it is to be presumed that he complied with any duty that may have devolved upon him in that regard. Negligence or want of due care on the part of the decedent, or failure by him to avoid the consequences of the defendants’ negligence after it was or should. have been known to him, would, in a case of this sort, constitute matter of defense, to be pleaded by the defendant, where the same was not affirmatively disclosed by the allegations of the petition. Williams v. Southern Ry. Co., 126 Ga. 710 (55 S. E. 948); Atlantic Coast Line R. Co. v. Wildman, 29 Ga. App. 745 (4) (116 S. E. 858); Hardwick v. Figgers, 26 Ga. App. 494 (2) (106 S. E. 738); Mayor &c. of Savannah v. Waters, 27 Ga. App. 813 (2) (109 S. E. 918). Under the Georgia cases, therefore, we think the petition good against general demurrer. Southern Ry. Co. v. Tankersley, 3 Ga. App. 548 (2) (60 S. E. 297); Bryson v. Southern Ry. Co., 3 Ga. App. 407 (3) (59 S. E. 1124); Dozier v. Central of Georgia Ry. Co., 12 Ga. App. 753 (78 S. E. 469); Central of Georgia Ry. Co. v. Barnett, 35 Ga. App. 528 (134 S. E. 126); Western & Atlantic Railroad v. Reed, 35 Ga. App. 538 (134 S. E. 134); Reed v. Southern Ry. Co., 37 Ga. App. 550 (3) (140 S. E. 921).

The facts of this case differentiate it from the case of Peeples v. Louisville & Nashville R. Co., 87 Ga. App. 87 (139 S. E. 85).

Should our conclusion be different because of the decision of the United States Supreme Court in the Goodman case? We think not, for a number of reasons. In the first place, since the petition when properly construed discloses no act or omission that could be accounted as negligence or a want of care on the part of the decedent, being silent as to anything which he did or failed to do, there is here no occasion for applying the rule laid down in that case. But there is still broader ground upon which to answer the above question in the negative. Assuming that the allegations should be construed as disclosing that the decedent did not stop, look, or listen, as seems to have been true in the Goodman case, we have here no Federal question (Mellon v. O’Neil, 275 U. S. 212), and it is well settled that, except as they relate to Federal questions, the decisions of the United States Supreme Court are not binding upon the State courts as precedents, but that the courts of each State are responsible for the construction and application of the local laws of that State. In such instances the decisions of the Supreme Court of the United States are to be considered as persuasive authority only, in like manner with the decisions of other States.

As was said by the Supreme Court of Illinois in Rothschild v. Steger, 256 Ill. 196 (99 S. E. 920, 42 L. R. A. (N. S.) 793, 798): “A decision of the Supreme Court of the United States in a ease taken to it on a writ of error from a State court, because of a Federal question being involved, is a binding precedent for the State courts, not only in the case presented, but in any subsequent case based on essentially the same facts and involving the same question. Black, Judicial Precedents, 354. But, aside from questions arising under the constitution, laws, or treaties of the United States, and in the field of general jurisprudence relating to the rights of persons and property, the jurisdiction and procedure of the courts, and the general principles for the administration of justice at common law and in equity, the decisions of the United States Supreme Court, while entitled to the highest and most respectful consideration as the pronouncements of a most eminent and learned tribunal, are, as regards all such matters, only to be considered by the State courts as persuasive authority. In respect to questions of general law, the State courts are required to follow the decisions of the highest court of the State, and are not bound by the authority of the Supreme Court of the United States; and particularly is this true where it would be necessary to overrule previous State decisions in order to conform to the views of -the Federal court.”

In the case under consideration we could not reverse the judgment of the court below and adjudge that the petition failed to set forth a cause of action, without overruling a number of our own decisions and ignoring, as we believe, certain decisions by the Supreme Court of this State. In Old Dominion Copper &c. Co. v. Bigelow, 203 Mass. 159 (89 N. E. 193, 40 L. R. A. (N. S.) 314 (10)), the Supreme Judicial Court of Massachusetts said: “The mere contrary conclusion reached by the Supreme Court of the United States upon a similar state of facts is not alone a sufficient consideration for a state court's overruling one of its own decisions.” Compare Johnson v. Atlantic Coast Line R. Co., 142 S. C. 125 (140 S. E. 443). And the same has been held by the Supreme Court of Georgia. In McWhorter v. Tarpley, 54 Ga. 291, the question was as to the liability of a guardian, in a certain state of facts, under the law of Georgia. The court said: “We do not agree •with the court that the courts of this State are bound by the decision of the United States court on the point indicated. It is not one of the questions on which that court is an appellate tribunal from this court. It is simply a question of general public law whether any particular act or law was in aid of the rebellion. This court has taken a contrary view from that adopted by the Supreme Court, and with every respect for that high tribunal, we are not prepared to reverse our judgment.” This doctrine was reaffirmed in Baldy v. Hunter, 98 Ga. 170 (25 S. E. 416).

In Kennemer v. State, 154 Ga. 139 (2) (113 S. E. 551), the Supreme Court of this State, having previously made a certain construction of the search and seizure clause of the Constitution of Georgia, declined to make a different construction in view of contrary decisions by the United States Supreme Court construing the corresponding clause of the Constitution of the United States. See also City of Atlanta v. Smith, 165 Ga. 146 (140 S. E. 369).

In the very recent case of Seaboard Air-Line Ry. Co. v. Sarman, 38 Ga. App. 637 (144 S. E. 810), this court, speaking through Judge Stephens, not only distinguished the Goodman case, but pointed out that under recognized principles it is not binding as a precedent upon the State courts in the decision of cases like the present.

It might add hut little, if anything, to a traveler’s safety fox him to leave his automobile for the purpose of looking for a train and then, after returning to his car, attempt to cross the track, without opportunity for a later view. On going back to his vehicle he might still have the same need of approaching the track and looking for a train that he had before his first examination, and after each such precaution might be no safer in going ahead than he was before. These, it seems to us, are questions which should ordinarily be determined by a jury under the particular facts and circumstances of the ease, and we are therefore of the opinion that the Georgia rule, to the effect that it is not negligence per se to fail to stop, look, and listen before attempting to cross a railroad-track at a public crossing, is not an unreasonable one as applied to a person traveling upon a highway in an automobile.

The petition in this case alleged, that the engineer failed to blow the whistle as required by law. This allegation is to be taken as true. If the whistle had been blown the traveler probably would have heard it and would likely have stopped and waited for the train to pass.

Thus, if we were free to choose as between the doctrine of the Goodman case and the rule previously obtaining in this State, we would adhere to the latter rule. But, besides this, upon such a question as we have in this case, we are required by the constitution of Georgia (Civil Code of 1910, § 6506) to follow as precedents the decisions of our State Supreme Court, if any have been rendered in regard to the same, and we think there are at least three decisions by that court which bind us in that case: Columbus R. Co. v. Peddy, 120 Ga. 589 (5) (48 S. E. 149); Macon Ry. Co. v. Barnes, 121 Ga. 443 (49 S. E. 282); Central Ry. Co. v. Harper, 124 Ga. 836, 840 (53 S. E. 391).

In view of these cases, this court could not, even if inclined to do so, follow the rule laid down in the Goodman case, that case being only persuasive and not controlling as authority.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    18806.
    Thoms v. John R. Thompson Company.
   Jenkins, P. J.

Before any writ of certiorari sliall issue, unless sued out in forma pauperis, the applicant must “produce a certificate from the officer whose decision or judgment is the subject-matter of complaint, that all costs which may have accrued on the trial below have been paid.” Civil Code (1910), § 5185. “Where such certificate was not made by the ‘ officer whose decision or judgment is the subject matter of complaint,’ but by the clerk of the court, this was not a compliance with the positive requirements of this section of the code, and a motion to dismiss the certiorari on this ground, made in the superior court, was properly sustained.” Davis v. Joiner, 1 Ga. App. 106 (2) (58 S. E. 62). See also Tippins v. DeLoach, 9 Ga. App. 362 (71 S. E. 497); Ray v. Cruce, 18 Ga. App. 265 (89 S. E. 302); Harte v. Sturtevant, 20 Ga. App. 822 (93 S. E. 530). Tliere is nothing in the act creating the municipal court of Atlanta, or in any of the acts amendatory thereof, which could be taken to change the rule with respect to the necessity of signing such certificate by the officer whose decision is the subject-matter of complaint, since by the act of July 31, 1925 (Ga. L. 1925, p. 386, sec. 2), amending the act creating the municipal court, of Atlanta, it is provided that the writ of certiorari shall lie only to the final judgment of the appellate division of the municipal court of Atlanta, and that it shall be the duty of the presiding judge in that division to “certify as to payment of costs and to approve all bonds in matters of certiorari.” Accordingly, the judge of the superior court did not err in dismissing the petition for certiorari in the instant case, which was accompanied by a certificate as to the payment of costs, signed only by the deputy clerk of the municipal court.

Decided November 17, 1928.

W. F. Wimberley Jr., M. V. Higdon, for plaintiff in error.

Welborn B. Cody, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.


text:
    18843.
    Central of Georgia Railway Co. v. Pitts.
    Decided November 17, 1928.

      Harris, Harris & Popper, A. S. Thurman, for plaintiff in error.

      W. S. Florence, contra.
   Bell, J.

In a suit against a railroad company for the killing of live stock upon its track, the “physical facts and circumstances alone in the case may afford proof of the defendant’s negligence, and may be such as to raise an issue of credibility for determination by the jury, notwithstanding the defendant’s witnesses, to rebut the presumption of negligence, may have testified as to their exercise of ordinary care and that the casualty was unavoidable.” Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 (2) (125 S. E. 865). Furthermore, in the present case the jury could have found that the engineer was impeached by a contradictory statement previously made by him as to a matter relevant to his testimony and to the case. Columbus Railroad Co. v. Peddy, 120 Ga. 589 (2) (48 S. E. 149); Civil Code (1910), § 5881. It can not be held as a matter of law that the presumption of negligence was conclusively rebutted by the evidence.

The court did not err in the admission of testimony, nor fail to charge sufficiently on the measure of damages. The evidence authorized the verdict, and there was no error in refusing a new trial.

Judgment affirmed.

Jenkvns, P. J., and Stephens, J., concur.


text:
    18845.
    MILLER v. STRAUS.
    Decided November 17, 1928.

      II. ~W. McLarly, for plaintiff in error.

      E. E. Garter, G. Seals Aiken, contra.
   Bell, J.

J. W. Straus brought suit against W. Y. Miller and his wife, Mrs. W. Y. Miller, to recover damages for personal injuries alleged to have been sustained by him as a result of his being struck by an automobile driven by Mrs. Miller. Service was perfected upon Mr. Miller, but not upon Mrs. Miller. Mr. Miller filed a general demurrer to the petition, and, this demurrer being overruled, he excepted.

The petitioh contained allegations as to the negligence of Mrs. Miller, and, as against demurrer, showed sufficiently that such negligence was the proximate cause of the plaintiff’s injuries. The petition further alleged, “that the Dodge sedan automobile which struck plaintiff was owned and kept by W. Y. Miller as a family car, and that it was being driven by his wife at the time in question, with his knowledge and consent, in the prosecution and within the scope of his business,, and that W. Y. Miller is therefore liable to the plaintiff for the injuries sustained by the latter as the result of the negligence of Mrs. W. Y. Miller as set out in this complaint”; and “that the defendant Mrs. W. Y. Miller is also liable to the plaintiff for the injuries sustained by him as the result of her negligence as set out in this complaint.”

The only ground of demurrer which is argued in this court is that the suit can not be maintained against the husband unless it is prosecuted jointly against him and his wife, and that since no service has been made upon the wife, the suit should be dismissed as to the defendant husband. A demurrer based upon facts not alleged in the pleading which it attacks is a speaking demurrer. Such a demurrer presents no question for decision and should never be sustained. Reid v. Caldwell, 120 Ga. 718 (5) (48 S. E. 191); Charleston & Western Carolina Ry. Co. v. Burckhalter, 138 Ga. 154 (2) (74 S. E. 1076); Miller v. Southern Ry. Co., 21 Ga. App. 367 (3) (94 S. E. 619). That Mrs. Miller had not been served was not a fact which appeared from the allegations of the petition, and, even if such fact were material to the other defendant, it could not be taken advantage of by a demurrer to the petition. Pollard v. Blalock, 147 Ga. 406 (2) 94 S. E. 226; Hicks v. Beacham, 131 Ga. 89 (2) (62 S. E. 45); Griffin v. Russell, 144 Ga. 275 (2) (87 S. E. 10, L. R. A. 1916 F. 216, Ann. Cas. 1917 D. 994).

But, even assuming that the demurrer properly raised the question as to the necessity of service upon Mrs. Miller, there is absolutely no merit in the point. At common law a husband was liable for the torts of his wife solely in virtue of their relation; but, whether under that rule of liability it was necessary to join the wife as a party defendant in a suit against the husband for the wife’s tort (Smith v. Taylor, 11 Ga. 20), we think there is now no such requirement as to parties in this State. It is now the law of Georgia that a husband is liable for the torts of his wife only when they are committed by her in the capacity of agent (Curtis v. Ashworth, 165 Ga. 782, 142 S. E. 111; Griffin v. Russell, supra), and where it is sought to hold the husband liable for some wrong committed by her within the scope of her agency, there is no more reason for joining the wife as a party defendant than for joining as a defendant any other agent, where the principal is sued for a tort alleged to have been committed by such agent. In all such cases the principal and the agent may be treated as joint tort-feasors, with the right in the injured person to sue both or either according to his election. Civil Code (1910), §§ 3613, 4413, 4469, 5517; Southern Ry. Co. v. Grizzle, 124 Ga. 735 (2) (53 S. E. 244, 110 Am. St. R. 191); Baker v. Davis, 127 Ga. 649 (1) (57 S. E. 62); Seaboard Air-Line Ry. v. Randolph, 126 Ga. 238 (1) (55 S. E. 47); Gooch v. Georgia Marble Co., 151 Ga. 462 (107 S. E. 47); Finley v. Southern Ry. Co., 5 Ga. App. 722 (3) (64 S. E. 312); Southern Ry. Co. v. Rowe, 2 Ga. App. 557 (6) (59 S. E. 462).

Tbe right of the plaintiff to proceed in the suit as against the defendant husband was in no wise affected by the failure to perfect service upon the defendant wife. The court did not err in overruling the demurrer.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.


text:
    18907.
    Mathis et al. v. Shaw.
    Decided November 17, 1928.

      M. B. Eubanks, for plaintiff in error. W. J. Nunnally, contra.
   Bell, J.

Where two persons separately owning various articles of personalty sell them jointly for a lump sum, the sellers jointly own the debt against the buyer for the purchase-money and may bring a joint suit against him for its recovery. Bank of Oglethorpe v. Brooks, 33 Ga. App. 84 (7) (125 S. E. 600); Civil Code (1910), § 5516. Under the evidence, there was no error in directing the verdict in favor of the plaintiff.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    18913.
    Davis v. Davis.
   Bell, J.

In a suit for temporary and permanent alimony, where the defendant husband has been required to give a ne exeat bond, the sureties on the bond are not discharged by a subsequent pendente lite agreement between the husband and the wife as to the amount of temporary alimony to be paid, the agreement providing that it “may be made the judgment of the court,’ and that “in default in payment of any sum agreed upon as temporary alimony, . . then said agreement to be made the judgment of the court and collection made under the law made in such cases.” Notwithstanding such agreement, the court still had authority to modify or revoke any order which it might pass granting temporary alimony, and, the agreement being thus subject to revision by the court, whose jurisdiction and control of the case continued, the sureties upon the bond remained liable according to the tenor of their obligation. Jennison v. Jennison, 136 Ga. 202 (2) (71 S. E. 244, Ann. Cas. 1912C, 441).

2. After such agreement as to temporary alimony had been made the judgment of tile court and before final judgment had been rendered in the case, the husband having defaulted in the payment of such temporary alimony, the wife sued out a proceeding in attachment, on which the court passed an order requiring t-he husband to show cause at a certain time and place why he should not be attached and punished as for a contempt, and service of the proceeding and order was duly made upon the defendant. The defendant ignored this proceeding, failed to appear, and left the jurisdiction of the State, and failed to answer the main suit, and was not present at final verdict and judgment in favor of the plaintiff, but was still without the jurisdiction of the court and beyond the limits of the State. Held, in a suit upon the ne exeat bond, the facts appearing as stated above, a finding that the bond had been breached would have been authorized by the evidence. May v. May, 146 Ga. 521 (91 S. E. 687); Davant v. May, 146 Ga. 746 (92 S. E. 210); Freeman v. Freeman, 143 Ga. 788 (2) (85 S. E. 1038); Swain v. Jaudon, 147 Ga. 773 (95 S. E. 696); Jackson v. Johnson, 164 Ga. 839 (3, 4) (139 S. E. 663).

Decided November 17, 1928.

W. L. Nix, I. L Oalces, for plaintiff.

John I. Kelley, for defendants.

3. This being a suit against the sureties upon a ne exeat bond in an alimony case, it not appearing that the sureties had been in any way relieved or discharged, and the evidence having authorized the inference of a breach of the bond, the court committed error in directing the jury to find against the plaintiff and in favor of the sureties.

Judgment reversed.

Jenkins, P. J., and Stephens, J., eoneur.


text:
    18942.
    FISHBURNE et al. v. HARTSFIELD LOAN & SAVINGS CO.

      Decided November 17, 1928.

      Levi O’Sleen, for plaintiffs in error.

      W. P. Kennedy, A. W. Clapp, Colquitt & Conyers, contra.
   Stephens, J.

(After stating the foregoing facts.) The act of 1920, supra, provides as follows: “Every person, copartnership, and corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of three hundred dollars ($300) and may charge, contract for, and receive thereon interest at á rate not to exceed three and one-half (3%%) per centum per month. Interest shall not be payable in advance or compounded and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or other charge, or amount whatsoever for any examination, service, brokerage, commission or other thing, or otherwise, shall be directly or indirectly charged, contracted for, or received, except the lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. If interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void and the licensee shall have no right to collect or receive any principal, interest, or charges whatsoever. No person shall owe any licensee, as such, at any time more than three hundred dollars ($300) for principal.”

The contract expressly provides that if any installment of “either principal or interest” is not paid promptly when due, interest is collectible “on the total unpaid balance” at the rate of 3y2 per cent, per month “for the length of time such installment or installments remain unpaid past maturity.” As the contract here provides that if any installment of “either principal or interest” is not paid when due, additional interest is collectible on the “total unpaid balance” for the period during which “such installment” remains unpaid, the “total unpaid balance” necessarily refers to the principal and interest past due and unpaid. The agreement to pay interest upon this unpaid balance is an agreement to pay interest upon interest, and is therefore an agreement compounding the interest, which, under the express provisions of the act of 1920, supra, is prohibited. The act, after prohibiting the compounding of interest, provides that “if interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void and the licensee'shall have no right to collect or receive any principal, interest, or charges whatsoever.” This provision of the contract, compounding the interest, is an agreement to pay interest in excess of that permitted by the act, and therefore, under the terms of the act, renders the entire contract void and unenforceable, and prevents the collection of the principal and interest and all charges whatsoever evidenced by the contract.

The provision in the contract that the “total interest and charges shall in no event exceed sy2% per month” is a limitation only upon the amount of the charges contracted for. It merely reduces the contract to one in which the total amount collectible shall not exceed 3y2 per cent, per month, and does not eliminate from the contract any agreement to pay a specific charge, as, for instance, an agreement to pay compound interest, or a charge for service, brokerage, commission, etc.

Whether the provision in the contract to pay attorney’s fees is such a charge as will, under the provisions of the act of 1920, supra, render the contract void and unenforceable, the provision whereby the obligors agree to pay “all costs of collecting, . . securing, or attempting to collect or secure” the indebtedness evidenced by the contract, “including twenty (20%) per centum attorney’s fees,” provides for the payment of expenses and costs other than, and in addition to attorney’s fees. A charge for collecting or securing the indebtedness which is other than a charge for attorney’s fees is a charge in addition to interest and the costs of filing and recording the contract, and is a charge expressly prohibited by the act of 1920, supra, and its presence in the contract, by the express terms of the act, renders the contract void and unenforceable, and the indebtedness, including the principal and interest and all charges evidenced thereby, uncollectible.

The contract sued on being void and unenforceable, the judgment of the municipal court, sustaining the demurrer, which was affirmed by the appellate division of that court, was not error. The judgment of the appellate division being correct, the judge of the superior court erred in sustaining the certiorari. See, in this connection, Jobson v. Masters, 32 Ga. App. 60 (122 S. E. 724).

Judgment reversed.

J enlcins, P. J., and Bell, J., concur.


text:
    18994.
    ELLIS MOTOR COMPANY v. HANCOCK.
    Decided November 17, 1928.

      Arthur Lewis, W. 0. Kinney, Jr., for plaintiff.

      Broclc, Sparks & Russell, for defendant.
   Bell, J.

Ellis Motor Company brought suit against E. J. Hancock in the municipal court of Macon. After judgment in favor of the defendant, the plaintiff carried the case by certiorari to the superior court. The exceptions in this court are to a judgment of the superior court overruling the certiorari.

The following were the facts: Ellis Motor Company sold an automobile to one Green and retained the title until payment of the purchase-money. The conditional-sale contract was in writing and was duly recorded. While the automobile was in the possession and control of Green under the retention-of-title contract, it was damaged by the negligence of Hancock, the defendant. Hancock was protected by liability insurance, and his insurer entered into negotiations with Green for a settlement. The balance of the purchase-money remaining due by Green to Ellis Motor Company amounted approximately to $160, and, pending the negotiations just referred to, that company notified both Hancock and his insurer of its claim of title and of the balance due, and demanded that settlement be made with it and not with Green. Nevertheless, the settlement was consummated with Green, and there is nothing in the record to impeach its fairness either as to motive or amount. This settlement was pleaded by Hancock in ‘bar of the suit against him by Ellis Motor Company to recover for the damage to the automobile in question. It seems that there was some issue in the evidence as to whether Ellis Motor Company repossessed the automobile, under the contract, after the collision, but for the purpose of this case it may be assumed that the automobile was so repossessed and was in the possession of that company at the time of the settlement.

While the vendor of personalty who has retained the title thereto to secure the payment of the purchase-money has a right, in the event of injury to the property, to maintain an action for the tort, provided the damages claimed do not exceed the balance of the purchase-price, the conditional vendee, where he is in legal possession of the property under the conditional-sale contract, may sue for the entire damage to the property, holding the recovery, if there be any, for the use and benefit of himself' and of the holder of the legal title, according to their respective interests in the property. Since, under the facts as they appear in this case, Green, in the absence of a settlement, could have sued for the entire damage to the property, he necessarily had the power to make a fair settlement of the claim with the tort-feasor. It follows, that the settlement between him and the defendant Hancock was a good defense as against the suit of Ellis Motor Company, the conditional vendor. See, in this connection, Louisville & Nashville R. Co. v. Dickson, 158 Ga. 303 (123 S. E. 12); Staten v. General Exchange Ins. Corp., 38 Ga. App. 415 (144 S. E. 53); Hinson v. Seaboard Air-Line Ry. Co., 38 Ga. App. 516 (144 S. E. 384); 6 C. J. 1166.

There might arise some question of abatement if both the vendor and the vendee in a conditional sale should attempt to sue, but no such question is presented in the present case.

Judgment, affirmed.

J enlcins, P. J., and Stephens, J., concur.


author: Broyles, C. J.

text:
    19101.
    DeLOACH v. MILES et al.

    Decided November 13, 1928.
    .Rehearing denied December 11, 1928.

      J. P. Dulces, for plaintiff in error.

      J. B. Moore, Henry 0. Farr, contra.
   Broyles, C. J.

This was a suit on account, brought by Miles and others doing business as Pine Grove Stave Company, against DeLoach. It resulted in the direction of a verdict for the plaintiffs. The only assignments of error in the bill of exceptions (there was no motion for a new trial) are upon the exclusion of certain testimony of the defendant, and the direction of a verdict for the plaintiff.

The undisputed evidence, of Miles was that Bushing, the person who sold the staves to the defendant, was a special agent of the plaintiffs and that he was authorized only to sell the staves and had no authority to collect the purchase-price. The testimony of the defendant, which was excluded on motion of the plaintiffs, was as to a certain statement alleged to have been made by Bushing to the defendant at the time when the defendant contracted to purchase the staves. That statement was in substance that he, Bushing, was the owner of the staves.

Counsel for the defendant contends that the statement of Bushing was admissible as part of the res gestse, and that as it was made dum fervet opus, it was binding upon Bushing’s principals, the plaintiffs. This contention is without merit. As before stated, the undisputed evidence showed that Bushing was a special agent with authority only to sell the staves. He had no authority to collect their purchase-price. “The declarations of an agent are not admissible against his principal when it does not appear that they were made in reference to a matter within the scope of the agency.” Central of Ga. Ry. Co. v. Americus Construction Co., 133 Ga. 392 (4) (65 S. E. 855); Wright v. Georgia Railroad &c. Co., 34 Ga. 330 (3).

As to the direction of a verdict for the plaintiffs, the only contention in the brief of counsel for the defendant is that such direction was error because of the previous error in excluding the testimony of the defendant as to the aforesaid declaration of the agent Rushing. In view of our ruling that the testimony was property rejected, the contention that the direction of the verdict was error is left without a prop to sustain it.

Judgment affirmed.

Lulce and Bloodworlh, JJ., concur.


text:
    19135.
    MILES et al. v. SANDS, survivor.
    Decided November 13, 1928.

      J, B. Moore, E. C. Elmore, for plaintiffs in error.

      P. M. Anderson, contra.
   Broyles, C. J.

Under the pleadings the only issue was whether Rushing, the agent of the plaintiffs and the agent who sold the staves to the defendant, was the duty authorized agent of the plaintiffs to collect for them. Much extraneous and illegal evidence for the defendant was admitted over the timely and appropriate objections of the plaintiff. However, it is unnecessary to point out this evidence and to pass upon the various special assignments of error in the record, since the brief of the evidence, including the illegal evidence, clearly shows, without contradiction, that the agent Rushing was the special agent of the plaintiffs, with authority only to sell the staves, and was not authorized by the plaintiffs to collect for them. The defendant, therefore, failed to sustain his plea, — that Rushing was “the duly authorized agent” of the plaintiffs to collect the purchase-price of the particular staves in question, and a verdict in favor of the plaintiffs was demanded, and the court erred in overruling the general grounds of the motion for a new trial. See, in this connection, DeLoach v. Miles, ante, 790.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    19128.
    TODD-WORSHAM AUCTION CO. v. UNDERWOOD.
    Decided November 14, 1928.
    Rehearing denied December 11, 1928.

      Horton Brothers & Peek, Morris Macks, for plaintiff in error.

      Paul S. Etheridge & Son, contra.
   Bloodworth, J.

We will amplify the second headnote only. The original petition alleged that “C. A. Todd and Lon D. Worsham, a partnership doing business as Todd-Worsham Auction Company, are residents of said State and County, and have an office and place of business in the City of Atlanta, Georgia.” In the answer to the petition this paragraph of the petition is admitted. The record shows that Todd and Worsham were each served personally, and also shows the following: “Served the defendant, C. A. Todd-Lon D. Worsham doing business as ToddWorsham Auction Co., by leaving a copy of the within action and summons with Lon D. Worsham personally one of firm, at the office and place of doing business of said firm, in the City of Atlanta, Fulton County, Ga.” In addition an answer was filed by “the defendants C. A. Todd and Lon D. Worsham, a partnership doing business as Todd-Worsham Auction Company.” There was no plea to the jurisdiction. Section 5664 of the Code of 1910 is as follows: “If a defendant appear and plead to the merits without pleading to the-jurisdiction, and without excepting thereto, he thereby admits the jurisdiction of the court.” See Thurman v. Willingham, 18 Ga. App. 395 (3) (89 S. E. 442).

Judgment affirmed.

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


text:
    18828.
    COLUMBUS BAGGING AND TIE COMPANY v. EMPIRE MILLS COMPANY.
    Decided November 17, 1928.
    Reheabing denied December 14, 1928.
    McGutchen, Bowden & Gaggstatter, for plaintiff in error.

      Blade & Bivift, contra.
   Bell, J.

To a suit by Empire Mills Company against Columbus Bagging & Tie Company the defendant demurred on general and special grounds, which the court overruled, and the defendant excepted.

The action was to recover damages for an alleged breach of contract by the defendant in refusing to accept and pay for brick. The petition alleged that the plaintiff in its trade name, Empire Brick Company, made with the defendant a contract for the sale of a quantity of brick, as evidenced by the following writing signed by the parties through their respective agents, to wit:

“The Columbus Bagging & Tie Co.,
“Columbus, Ga., June 13, 1927.
“Empire Brick Co., Columbus, Ga.
“Gentlemen: We beg to confirm the offer made your Mr. C. W. Mizell for 400,000 brick or as many needed to erect our new warehouse at $10.50 per thousand delivered our siding at our new warehouse, to be delivered as needed.
“Yery truly yours,
“Columbus Bagging & Tie Co. M. Sternberg.
“Above brick to be kiln run brick.
“Above price accepted. Empire Brick Co., C. W. Mizell, Sales Manager.”

The petition alleged that on July .29, 1927, the defendant “breached said contract/’ and refused to accept and pay for the brick, on the pretext that the defendant had decided to build the warehouse through an independent contractor, and not to construct the same directly with its own force. The above writing was attached to the petition as Exhibit A, and the petition contained, among others, the following further allegations: “The said contract between plaintiff and defendant was in the form of an offer to plaintiff by the defendant to buy, as shown by Exhibit A, and the acceptance thereof by plaintiff, which was made. The said offer by defendant was made for defendant by M. Sternberg, who is and was secretary and treasurer of defendant, and had authority and did make said offer for and on behalf of the defendant. When said offer was made by the defendant and accepted by plaintiff, the offer by defendant and its acceptance by plaintiff were executed in duplicate originals, and one original was retained by defendant, and one by plaintiff, as a memorandum of the completion of the agreement of the parties.”

The suit was in two counts, in one of which the damage was laid in the sum of $895, as the difference between the contract price and the market price at the time and place of delivery, and in the other of which the damage was laid in a considerably larger sum, as the difference between the contract price and the cost of manufacture.

It is elementary that the response to an offer will not amount to an acceptance, so as to effectuate a contract, unless it be identical with the terms of the offer and unconditional (Monk v. McDaniel, 116 Ga. 108 (3), 42 S. E. 360; Gray v. Lynn, 139 Ga. 294, 77 S. E. 156); but this principle can not be applied so as to avoid tlie conclusion of a proper and sufficient acceptance in this case. Although the plaintiff could have prevented any possible doubt upon the question of acceptance had it merely used the one word “accepted” (see McGhee Cotton Co. v. Herrine, 10 Ga. App. 700, 74 S. E. 66; Southern Wood Preserving Co. v. Strain, 27 Ga. App. 332, 108 S. E. 251; Lowe v. Woodson, 28 Ga. App. 290, 111 S. E. 582; Terry v. International Cotton Co., 136 Ga. 187, 70 S. E. 1100), we should not cast aside that which the parties have drawn up and signed as expressive of apparently serious purposes, simply because they have not used apt and suitable language, such as might have been employed by a skilled attorney in drafting a contract.

The cardinal rule of construction is to ascertain the intention of the parties, and to this end all the attendant and surrounding circumstances may be looked to if necessary. While words are to be given their usual and common signification, and while the language used by the plaintiff, to wit, “Above price accepted,” if given a hard or strict construction, might imply an acceptance only as to the rate or price per thousand at which the brick were to be sold, still it can not be overlooked that the defendant was in the market for brick in rather a large quantity, and took the pains to address to the plaintiff an offer embracing several conditions such as kind, quantity, price and place of delivery, all expressed in a brief communication, but evidently with some degree of care. The plaintiff could not have supposed that-the defendant was merely trifling or engaged in passing away the time. If the plaintiff did not like the defendant's offer and was for any reason unwilling to sell the brick in accordance with the terms thereof, it could very easily have declined the offer in express terms. It seems only reasonable to infer that if the plaintiff did not intend to accept the offer in all of its terms, it would never have responded in such language as was used and by solemnly placing its signature upon the very paper presented by the defendant as an offer. We can not think that a layman would be unwilling to enter into contractual relations such as are asserted by the plaintiff in this case, and would yet yield his signature as the plaintiff did, without a more express guaranty against liability than was contained in the words with which its signature was here accompanied.

The plaintiff intended either to accept the offer or to make a pretense of accepting without actually doing so. If the language which it employed, would, upon a literal construction, have the effect of splitting the offer by ignoring some of its terms while accepting others, such a construction would not be in keeping .with the attendant and surrounding circumstances. One can not reasonably suppose that the plaintiff did not intend to accept the proposition of the other party, without inferring a purpose on its part to restrict the apparent significance of its act in signing the paper, and to do so secretly by choosing words of a limited and narrow meaning. If the plaintiff was unwilling to enter into the proposed contract, why the gesture of signing? If it should be said that the choice of the particular language was not deliberate but was made in the natural and regular course, that in itself would amount virtually to an admission that complete acceptance was intended. Indeed, it is more likely that the choice ' was entirely casual, not studied. It is not improbable that in the negotiations between the parties the price was the principal thing discussed, so that when the defendant prepared and presented its offer, the price being the matter uppermost in the plaintiff’s mind, it wrote the words, “above price accepted”, intending to accept the offer as made. It is well known that quantity in the sale of goods may influence price, as will also the kind, quality, and place of delivery. In the instant case it is not unreasonable to assume that the word “price,” as used by the plaintiff, was intended to embrace each and all of these conditions, or, in other words, that the term was used in a comprehensive sense, really taking the place of the word “offer”. In this view, what the plaintiff wrote and signed would have the same meaning as “Above offer accepted,” and this, in our opinion, is the proper construction.

The words here under consideration are not to be studied abstractly as words in a dictionary, but must be examined in the light of the circumstances; and, among the circumstances, we see not only that the plaintiff signed the paper along with the defendant, but that the parties acted with such seriousness as to execute the writing in duplicate, one copy being retained by the plaintiff and the other by the defendant as a memorandum of what each had undertaken. The defendant must have believed that the plaintiff intended to enter into contractual relations upon the terms expressed in its offer, and the existence of such belief must have been apparent to the plaintiff.

It is a principle, as related to a contract, that the meaning placed upon it by one party, and known to be thus understood by the other party, at the time of execution, shall be held to be the true meaning. Civil Code (1910), § 4267. This rule as it is stated in the code seems to refer only to completed contracts, but we think the reason of it is applicable in the present ease.

It is our conclusion that, from the language used, considered in the light of the circumstances, the plaintiffs acceptance was intended fully and fairly to meet the proposition as presented to it, and while this view may not be in accord with technical reasoning, we think it harmonizes with what would have been the understanding of reasonably and untechnically minded men in the situation of the plaintiff and the defendant at the time of the transaction in question. Slater v. Savannah Sugar Refining Corp., 28 Ga. App. 280 (110 S. E. 759).

Upon the question discussed above depended not only the general but also most of the special grounds of the demurrer. All the grounds were properly overruled.

Judgment affirmed.

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


text:
    18663.
    SNEAD v. THE STATE.
    Decided December 11, 1928.

      Boykin, & Boylciñ, 8. Uoldemess, Betty Gobi, II. G. Strickland, Smith & Millican; for plaintiff in error.

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

A special presentment was returned by the grand jury of Carroll county, charging the accused with the offense of fraudulent insolvency of a bank; the bank involved being the Citizens Bank of Carrollton, Ga. The defendant filed a plea in abatement, alleging that the special presentment was of no force and effect, because named members of the grand jury were depositors in said bank, or related within the prohibited degree to depositors or stockholders in said bank, or related to a contributor to a fund to be used to employ counsel to prosecute defendant. All of the disqualifications referred to in said .plea were propter affectum. Upon the trial of the plea in abatement the court directed a verdict against the plea, .and the defendant excepted pendente lite, and in his bill of exceptions assigns error on the exceptions pendente lite. Under the ruling in Bitting v. State, 165 Ga. 55 (2), 59-64 (139 S. E. 877), the court did not err in directing a verdict against the plea in abatement. The second headnote in the Bitting case is made the first headnote in this case.

Headnotes 2 and 3 to this case are copies of headnotes 1 and 2 to a decision by the Supreme Court, written in answer to questions certified to that court by this court. For the full decision of the Supreme Court see 167 Ga. (145 S. E.) Reference to the Supreme Court decision renders unnecessary a discussion of these headnotes. Under these rulings of the Supreme Court the two special grounds of the motion for a new trial are meritorious, and the judge of the trial court erred in overruling the motion for a new trial.

Judgment reversed.

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