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sues involved at the trial, yet as the evidence, taken all together, demanded the verdict, a new trial will not be ordered.

Little, J., dissenting.
(Syllabus by the Court.)

Error from superior court, Effingham county; R. Falligant, Judge.

Action between E. E. Foy and R. H. Plant. From the judgment, Hoy brings error. Affirmed.

J. G. & D. H. Clark and Seabrook & Morgan, for plaintiff in error. Garrard, Meldrim & Newman, for defendant in error.

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1. A contract which must, under the statute of frauds, be in writing, and which accordingly is put in writing and duly executed, cannot be subsequently modified by a parol agreement.

2. Mere nonaction is not performance, either partial or complete, and will not, therefore, take a parol contract out of the statute of frauds. (Syllabus by the Court.)

Error from city court of Richmond; W. F. Eve, Judge.

Action by the Augusta Southern Railroad Company against the Smith & Kilby Company.

From an order sustaining a demurrer to the complaint, plaintiff brings error. Affirmed.

Leonard Phinizy and Boykin Wright, for plaintiff in error. Jos. B. & Bryan Cumming and J. R. Lamar, for defendant in error.

LUMPKIN, P. J. Although the bill of exceptions complains of various rulings made by the trial court, this case is really controlled by a determination of two only of the questions involved. The following statement presents in condensed form all that is material to an understanding of these questions and of our decision thereon: The Augusta Southern Railroad Company brought an action against the Smith & Kilby Company for an alleged breach of a written contract, which would, had the same been in parol, have been void under the statute of frauds. Finding itself unable to prove facts entitling it to a recovery upon its original petition, the plaintiff filed certain amendments thereto; alleging that after the making of the written contract the same had, in material respects (the particulars concerning which were set forth), been changed and modified by a parol agreement between the parties. Treating the amended contract as a whole, it was still one which would have been void under the statute of frauds, had it rested entirely in parol. After these amendments to the petition were allowed, the defendant, by a

demurrer thereto, made the point that, inasmuch as the contract originally declared upon was one which, under the statute, would not have been good but for the fact that it was in writing, parol modifications of it materially changing its terms could not lawfully be alleged or proved. The demurrer was sustained, and the plaintiff contends that this was error. This makes the first question to be disposed of here. The petition, as amended, alleged facts upon which the plaintiff bases the contention that, relying upon the defendant's complying in good faith with the terms of the parol agreement, it postponed the doing of certain essential things beyond the time within which, under the original written contract, it had agreed to do the same, but that, having offered to perform all of its undertakings thereto relating within the time limited by the modified contract, the statute of frauds could not be justly invoked against it. In other words, the plaintiff insists that there has been such a part performance by it of the subsequent oral agreement as should operate to take the case out of the statute.

1. It is not now open to serious question that, "if it were not necessary in the first instance to have the contract reduced into writing, parol evidence may be received of conversations and circumstances subsequent to the time of making the agreement, to show that the parties, upon sufficient consideration, consented afterwards to vary the contract or add some new stipulation." Rogers v. Atkinson, 1 Ga. 12. Indeed, this doctrine is too well settled to require further discussion or citation of authority. But it by no means follows that a contract within the statute of frauds, and therefore required to be in writing in the first instance, can subsequently be modified or changed by parol. On the contrary, the language just quoted clearly intimates that this is not permissible. After stating the common-law rule that simple contracts, though reduced to writing, may be annulled or modified by a "fresh parol agreement," Mr. Benjamin says: "But this principle of the common law is not applicable to a contract for the sale of goods under the statute of frauds. No verbal agreement to abandon it in part, or to add to or omit or modify any of its terms, is admissible." 1 Benj. Sales, § 214. We might without difficulty multiply citations on this line, but it is unnecessary, for this court has in distinct terms held that contracts which the law requires to be in writing cannot be altered by subsequent parol agreements. Thus, in Simonton v. Insurance Co., 51 Ga. 76, it was held that as contracts of insurance are, by express statute, required to be in writing, subsequent agreements to change the terms of such contracts must likewise be in writing. On page 80, McCay, J., said: "A written contract not required by law to be in writing might always be, subsequent to its making, altered or modified by a new parol contract based on a consideration. But, if the law required the insurance contract to be written, it

would seem to follow, as a matter of course, that any alteration of it must also be in writing, since at last every alteration is a new insurance contract, which, by the express terms of the statute, must be in writing." Again, in Mitchell v. Insurance Co., 54 Ga. 289, it was held that “a contract required by law to be in writing cannot be shown to have been altered by parol after its execution." On pages 200 and 291 the same judge remarked: "It is generally true that a simple contract, though in writing, may be altered by a subsequent legal contract not in writing. But this cannot apply to a contract required by law to be in writing. If the contract may be altered in parol, then there is a contract on the subjectmatter by parol, and that is forbidden by the statute." The decision of this court in Lester v. Heidt, 86 Ga. 226, 12 S. E. 214, went even further; it being there held that though a written memorandum of a contract for the sale of land referred to additional terms agreed on between the contracting parties, yet, as these terms were not evidenced by the writing itself, they could not be supplied by parol, the reason being that a contract which the statute of frauds declares must be in writing cannot rest partly in writing and partly in parol. See, also, Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, holding that a written order for goods amounting in value to more than $50, but not specifying the price of the articles ordered, could not, for the purpose of fixing the price thereof, be by parol evidence connected with other writings not referred to in the order itself, although it would have appeared from these other writings, if considered a part of the agreement, what the price agreed on really was. Though there may be decisions elsewhere to the contrary, the weight of au thority accords with the view which has met with approval in this state. When "the original contract is required by the statute of frauds to be in writing, the better opinion is that it cannot be varied by a subsequent con tract which is not in writing. As the new contract is rendered void by the statute of frauds, it ought not to affect the rights acquired under the former agreement." 3 Am. & Eng. Enc. Law, 893.

We will now briefly notice the Georgia cases which counsel for the plaintiff in error insist are not in harmony with those above cited. In Collins v. Lester, 16 Ga. 410, the contract under consideration was one which the law did not require to be in writing; it being for the hire of slaves for a term of less than one year. Although it appears that the negotiations leading up to the contract took place in December, 1851, the slaves were not delivered to the hirer until January, 1852, on the 2d day of which month a written contract was signed, stipulating that the term of hiring was to expire on the 24th of December of that year. Cartright v. Clopton, 25 Ga. 85, was an action against a surety upon a promissory note. While the statute of frauds does require that a contract of this nature must be in writing,

the point was not raised in that case that the written contract could not be altered by a subsequent parol agreement. The controversy seems to have been whether the parol evidence objected to proved a contract contemporaneous with the giving of the note sued on, or one made subsequently thereto; and the court simply held that, under the evidence submitted, the point was not well taken that the defendant sought by parol to ingraft upon the written instrument an alleged oral stipulation agreed on at the time the note was signed. There certainly was in that case no ruling upon the question now before us. Nor was this question made or passed upon in Cothran v. Brower, 75 Ga. 494. Indeed, it does not appear that the contract there involved was within the statute of frauds; the same being an agreement for professional services which might, in the contemplation of the parties, have been performed within less than a year from the date of the contract, and in point of fact such services were actually performed. In Brooks v. Matthews, 78 Ga. 739, 3 S. E. 627, the court did not rule upon any question involving the statute of frauds. While it is true that Justice Blandford remarked that "a contract in writing may be changed by subsequent parol agreement," the only point actually decided was that the evidence relied on to show a subsequent parol agreement did not prove that any such agreement was ever entered into. As to the case of Jones v. Grantham, 80 Ga. 472, 5 S. E. 764, it does not appear that the contract then under consideration was one within the statute of frauds; it being a simple contract for the payment of money, and the report of the case not disclosing that the contract was not to be performed within a year. Moreover, the new agreement changing the terms of the original contract was fully executed by the party relying thereon. What has last been said is also applicable to the case of Denham v. Walker, 93 Ga. 501, 21 S. E. 102. The contract therein dealt with was one which the law required to be in writing, and the precise ruling made was as follows: "It was contended that, as the original contract was one which the statute of frauds required to be in writing, any agreement to vary the contract must also be in writing. Whatever may be the proper view as to the admissibility of parol proof to establish an agreement of this kind where the agreement is wholly executory, such proof is clearly competent where there is evidence that the agreement has been performed."

2. There is no merit in the contention that there was part performance by the plaintiff in the present case. Mere nonaction cannot be treated as performance, either partial or complete. The plaintiff parted with nothing of value, and did nothing to its injury. It simply waited, choosing to rely upon a parol agreement which it ought to have known was not legally binding upon the opposite party. The case of Simonton v. Insurance Co., 51 Ga. 8082, not only supports what is here laid down.

but, on its facts, goes a considerable extent further upon the same line. Judgment affirmed. All the justices concurring.

(106 Ga. 879)

LOWE v. HOLDER et al. (Supreme Court of Georgia. April 19, 1899.) RES JUDICATA-CONSTRUCTION OF WILL-NATURE OF ESTATE.

1. This court having, at the January term, 1872 (45 Ga. 481), in a case to which the plaintiff in error and the predecessors in title of the defendant in error now asserting title against him were parties, affirmed a judgment of the superior court construing a will whereby the land in controversy was devised, that judgment is binding and conclusive upon the parties now before the court.

2. Under the construction then placed upon the will in question, the persons under whom the above-designated defendant in error claims took an absolute fee in the property, “upon their going upon the land to live"; and it follows that the court did not err in rendering a judgment against the plaintiff below.

(Syllabus by the Court.)

Error from superior court, Warren county; S. Reese, Judge.

Action by C. C. Lowe against Mary Holder and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Thos. E. Watson and Saml. H. Sibley, for plaintiff in error. J. Whitehead, Phillips & Phillips, W. C. Beeks, and J. S. Boynton, for defendants in error.

LITTLE, J. 1. The will which is sought to be construed in the present action was passed upon by this court in the case of Lowe v. Cloud, 45 Ga. 481. That case arose on a bill filed by the executor against certain defendants, one of whom is the plaintiff in error here, praying for direction and a construction of the second item of the will of M. M. Shaw. The predecessors in title of the defendants in error were parties in that case. The superior court of Warren county held that the Tarvers took a fee simple to the land covered by the second item of the will. In reviewing the decision so rendered, this court held that the second item of the will conveyed a fee in the land to Elizabeth Tarver and Margaret Ann Tarver, upon their compliance with the condition; that is to say, upon their going upon the land to live. It seems to us that the judgment rendered in that case is binding and conclusive upon the parties now before the court, according to the present record.

2. It will be noted that the decree by the chancellor in the case to which we have just referred held that the Tarvers, the devisees in the second item of the will, took a feesimple estate in such lands. It is true that this court, in passing on the case, held that the words used in this devise conveyed a fee in the land to the Tarvers; but, considering the question which was then before the court for determination, it is clear that in using the word "fee" there was no intent on the part of this court to limit the estate conveyed,

and the meaning of that judgment and decision is that the Tarvers, under the terms of the second item of the will, took an absolute fee to the land therein described, when they complied with the condition named in the will, that is to say, upon their going upon the land to live. It is not necessary for us to consider, nor do we pass upon, the correctness of the decision then rendered. The question raised in the present record, according to our interpretation of that case, was fully and finally decided, and has been, since the rendition of the judgment therein, res adjudicata between the parties to the present case; and the judgment of the court below is affirmed. All the justices concurring.

(108 Ga. 758)

STROM v. GEORGIA RAILROAD &

BANKING CO.

(Supreme Court of Georgia. April 19, 1899.) DIRECTING VERDICT.

As the evidence authorized a finding that the deceased was killed by the running and operation of the defendant's train of cars, a presumption of negligence on the part of the railroad company arose under the statute; and it was, therefore, on the trial of an action brought to recover damages for the homicide, erroneous to grant a nonsuit, there being no evidence showing that the deceased failed to exercise the proper diligence, or to rebut the legal presumption against the defendant.

(Syllabus by the Court.)

Error from superior court, Taliaferro county; S. Reese, Judge.

Action by A. J. Strom against the Georgia Railroad & Banking Company. Judgment for defendant, and plaintiff brings error. Reversed.

H. M. Holden, for plaintiff in error. Jos. B. & Bryan Cumming, for defendant in error. PER CURIAM. Judgment reversed.

(108 Ga. 760)

LOGAN v. LOGAN. (Supreme Court of Georgia. April 20, 1899.) WITNESS-COMPETENCY-TRANSACTIONS WITH DECEDENT-NEW TRIAL.

1. A person who is neither a party to a case, nor interested therein, is a competent witness on the trial thereof, for all purposes. (a) The witness whose competency was questioned in this case on the ground that his testimony related solely to transactions between himself and the deceased husband of the plaintiff was properly allowed to testify concerning the same. 2. In view, however, of the evidence appearing in the record, and upon consideration of the ground of the motion for a new trial relating to newly-discovered evidence, there was no abuse of discretion in granting a second new trial.

(Syllabus by the Court.)

Error from superior court, Murray county; A. W. Fite, Judge.

Action between R. C. Logan and S. M. Logan. From an order granting a new trial, R. C. Logan brings error. Affirmed.

J. J. Bates and R. J. & J. McCamy, for plaintiff in error. Jones, Martin & Jones and C. N. King, for defendant in error.

PER CURIAM. Judgment affirmed.

(107 Ga. 263)

UNITED STATES LEATHER CO. et al. v. FIRST NAT. BANK OF GAINES

VILLE et al.

(Supreme Court of Georgia. April 20, 1899.) APPEAL BILL OF EXCEPTIONS-PARTIES. Failure to make a person interested in sustaining a judgment excepted to a party to the bill of exceptions, and to serve such person with a copy thereof, results in a dismiss of the writ of error.

(Syllabus by the Court.)

Error from superior court, Hall county; J. J. Kimsey, Judge.

Action by the First National Bank of Gainesville and others against the United States Leather Company and others. Judgment for plaintiffs. Defendants bring error. Dismissed.

Estes & Boone, Johnson & Dorsey, and J. J. Strickland, for plaintiffs in error. Geo. K. Looper, Dean & Hobbs, and W. B. Sloan, for defendants in error.

LUMPKIN, P. J. The only matter litlgated upon the trial below was whether or not certain mortgages were valid. A verdict sustaining them was returned. The losing parties made a motion for a new trial, and excepted to a judgment overruling the same. Mrs. C. E. Finger, as transferee, was part owner and holder of one of these mortgages, and was a party to the case. She is therefore certainly interested in sustaining the judgment under review, but was not made a party to the bill of exceptions, or served with a copy of the same. Accordingly the motion made here to dismiss the writ of error must be sustained. Civ. Code, § 5547; Craig v. Webb, 70 Ga. 188; Knox v. McCalla, Id. 725; Crosthwait v. James, 95 Ga. 570, 20 S. E. 494; Inman v. Estes (Ga.) 30 S. E. 800, and cases cited; White v. Bleckley (Ga.) 31 S. E. 147; Augusta Nat. Bank v. Merchants' & Miners' Bank (Ga.) 31 S. E. 433. Writ of error dismissed. All the justices concurring.

(107 Ga. 250)

BRINSON v. REID. (Supreme Court of Georgia. April 20, 1899.) APPEAL-HARMLESS ERROR.

Even if the charge excepted to was not an accurate statement of the law applicable, it is manifest that it caused no injury to the losing party; and the verdict rendered in the city court being one of which he had no just cause to complain, save as to a single error therein, which the superior court corrected, its judg ment overruling the certiorari, and charging the defendant therein with the costs, will not be disturbed.

(Syllabus by the Court.)

Error from superior court, Clarke county: N. L. Hutchins, Judge.

Action by W. J. Reid against H. J. Brinson. Judgment for plaintiff. Defendant brings error. Affirmed.

H. C. Tuck, for plaintiff in error. J. J. Strickland, for defendant in error.

LUMPKIN, P. J. This was an action in the city court of Athens by the guest of a hotel against the proprietor of the same for the value of lost baggage. The plaintiff had a recovery of $125 as principal and $5 as interest. Thereupon the defendant filed a petition for certiorari, alleging error in the charge of the court, and complaining of the verdict as excessive. In the superior court a judg ment was rendered overruling the certiorari, on condition that the plaintiff in the court below would write off from his verdict the sum named therein as interest, and adjudging him liable for the costs of the certiorari. The interest was written off, and the defendant's bill of exceptions alleges error in not sustaining the certiorari generally.

It may be that the judge of the city court stated to the jury too strongly against the defendant the law regulating the liability of innkeepers. It is, however, unnecessary to determine whether or not error in this respect was committed; for the charge, even if incorrect, could have had no bearing whatever upon the question of amount, and the evidence fully warranted a finding in the plaintiff's favor of at least $125. The item of the verdict relating to interest was unlawful, but the verdict was cured by the order directing the interest to be written off. This being so, and the costs of the certiorari having been charged to the defendant in certiorari, who was the plaintiff in the original action, the defendant therein has no just cause for complaining of the judgment rendered in the superior court. Judgment affirmed. All the justices concurring.

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The fact that a municipal corporation, after having granted to a particular person, for a specified sum, a license to sell spirituous liquors for a designated year, issued to another person a like license, covering the same period, for a smaller consideration, does not give to the former any right of action against the municipality; nor has he, as a dealer, any concern with the transaction between the corporate authorities and the second licensee, or, as such, any right, for any reason, to cancel or set aside any contract growing out of such transaction. This is true, although the transaction in question may have been unlawful, irregular, and have resulted in injury to the business of the first licensee.

(Syllabus by the Court.)

Error from superior court, Hancock county; S. Reese, Judge.

Action by Tena Silver against the mayor and aldermen of Sparta. Judgment for defendant, and plaintiff brings error. Affirmed.

Chas. A. Picquet, for plaintiff in error. R. H. Lewis, for defendant in error.

LITTLE, J. The plaintiff in error brought suit in the superior court of Hancock county against the mayor and aldermen of the town of Sparta, making, substantially, the following allegations: That the defendant is indebted to her in the sum of $12,500, damages, for that in December, 1896, one Mandel, who had been theretofore conducting the business of retailing spirituous liquors in the town of Sparta, proposed to petitioner that the latter purchase a certain quantity of spirituous liquors, which would remain in his store after the expiration of his license, said Mandel expressing his intention to leave Sparta and go into business elsewhere; that prior to that time petitioner's husband had been engaged in the same business in said town, and, believing the statement of Mandel, an agent of petitioner accepted said proposition; that about the last of December petitioner was informed, by an officer of the corporation, that the corporation would not issue a license to one of the Mandels to sell liquor during the year 1897, that Mandel did not have the sum of $4,000, which was the amount the mayor and aldermen had fixed for said license, and that they would not accept an offer previously made by Mandel to convey to the mayor and aldermen a tract of land, and pay such sum in addition thereto as would aggregate $4,000 for said license, if petitioner would purchase a license from the corporation and pay the sum of $4,000 therefor, but that the corporation could not issue an exclusive 11cense, as the same would be illegal; that, believing the representation of this officer, petitioner agreed to pay $4,000 for the license, stating to the officer that he would not receive the license, and pay that sum, or any other sum, if a license would be granted to Mandel authorizing him to retail liquor in said town in said year of 1897; hat this agreement was transmitted to the corporation by the officer referred to, and the corporation issued a license to petitioner in accordance with such agreement; that the mayor of the town of Sparta entertained bad feelings towards her husband, and desired to injure petitioner, and, after petitioner had purchased the license, the mayor proposed to Mandel that he would issue to him a license to sell liquor in said town for the year 1897, if Mandel would convey to the corporation a tract and parcel of land lying near said town, and in addition thereto that the corporation would pay Mandel $500 in cash; that the land was not worth more than $2,200; that this proposition was accepted for the purpose of defrauding and damaging petitioner; and the said mayor issued to Mandel a license to retail spirituous liquors in the town of Sparta

for the year 1897, giving him equal privileges with those granted to petitioner, and on the 9th of January, 1897, the said Mandel conveyed the tract of land, as agreed on, to said corporation. The land in question is described in the petition as containing 575 acres, more or less. Petitioner avers that the land was not worth more than $2,200, and had been repeatedly offered for $2,500, but a purchaser could not be found at that price, so that the corporation issued to Mandel a license for about $2,500 less than that paid by petitioner; that the ostensible consideration agreed on in the purchase of the land was $4,500, and was made that the transaction might appear fair upon its face. Petitioner alleges that the tract of land constitutes a farm; that it is used for farming purposes; that it is beyond the corporate limits of the town of Sparta; and petitioner says that the corporation did not have the power to purchase the farm, and enter into the vocation of farming, which it has done. Petitioner alleges that the deed of conveyance is void because it forms a part of a fraudulent scheme to defraud petitioner. It is further averred that the corporation did not have the power to issue a license save for cash, and that Mandel did not pay the corporation anything, but received from it the sum of $500. It is further alleged that, if the corporation had not issued a license to Mandel, petitioner would have sold $30,000 worth of liquors in 1897, and realized a profit of $10,000, but, on account of the issuing of the license to Mandel, she was unable to sell $10,000 worth of liquors in said year, without any profit at all, whereby she was damaged $10,000. It is further alleged that the issuance of the license to Mandel was a discrimination against petitioner. The prayer is that the deed from Mandel to the corporation be declared void and canceled, and that petitioner have judgment for the sum of $12,500 damages against the corporation. By amendment it is alleged that the mayor and aldermen of Sparta exchanged a license with Mandel for the tract of land described, and paid Mandel $500 in addition. The prayer in the petition is amended by praying that she have a judgment in the sum of $2,500, which amount she alleges was fraudulently and illegally obtained from her by the mayor and aldermen of Sparta. The defendant demurred to the petition on a number of grounds. The court sustained the demurrer, and dismissed the petition, and the plaintiff in error excepted.

1. This is a very remarkable case, and, if the facts averred in the petition be true, a singular and entire misconception of the legal nature of a license to retail spirituous liquors, as well of the powers and duties of a municipal corporation, exists in the minds of both parties to the case. In any view of the case, the demurrer to the petition was properly sustained. The eighteenth section of an act of the general assembly entitled "An act to alter and amend, revise and con

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