for a hearing, and an order was passed setting aside the verdict and granting a new trial. The plaintiff excepted, assigning error on the refusal of the judge to dismiss the motion for a new trial, and on his judgment granting a new trial in the case.

1,2. There was no error in overruling the motion to dismiss the motion for a new trial. It was filed, and a rule nisi granted thereon in due time, during the term at which the trial was had. The court during this term had authority to pass an ex parte order setting the hearing of the motion for a new trial at a stated time in vacation, and allowing the movant until then to prepare and file a brief of the evidence in the case. Under such an order, when the time for the hearing arrived the case was completely under the control of the judge; and it was within his discretion either to enforce the order strictly or to postpone the hearing and allow further time to file the brief of evidence, if one properly prepared was presented for approval on that day. The record shows that the brief of evidence was approved on that day, and a postponement was had for the sole purpose of allowing the same to be filed in the clerk's office; the hearing being, under the order above referred to, in a county other than that in which the trial took place. There was certainly, under the facts of this case, no abuse of discretion in refusing to dismiss the motion for a new trial on the ground that the brief of evidence had not been filed, nor in postponing the hearing in order to allow the movant to file the same. Bates v. Assurance Co., 100 Ga. 249, 28 S. E. 155; Hightower v. Brazael, 101 Ga. 371, 29 S. E. 18; Hightower v. George, 102 Ga. 549, 26 S. E. 729. The rule nisi not directing service to be made during the term, nor in any given number of days, and there being an acknowledgment of service obtained in ample time for the respondent to be present at the hearing of the motion, there was no error in refusing to dismiss the same on the ground that there had been no proper service.

3. This being the first grant of a new trial, the judgment of the court below would, in any event, be affirmed, as the record does not show that the law and facts required the verdict rendered. On the contrary, an examination of the record discloses that a verdict for the plaintiff ought not to have been rendered, and the judgment granting a new trial was therefore the only proper judgment that could have been rendered on the motion for a new trial. It appears from the record that, contemporaneously with the execution of the note sued on, a paper, of which the following is a copy, was signed by James J. Monroe, and delivered to the defendant: "This is to show that I, J. J. Monroe, have this day sold my interest in my father's estate to my brother. L. D. Monroe, who is the executor on said estate, for the sum of twelve hundred dollars, with the distinct understanding that he is not to be sued on said note, and it is en

tirely discretionary with him whether he ever pays said note or not." As between the parties and their legal representatives, the contract entered into is contained in the paper just quoted and the note sued on; and the two papers must therefore be read together, and be dealt with as if they really constituted but one instrument. Thus treating them, the liability to suit upon failure to pay, which would ordinarily result from a breach of such a promise as that contained in the note, is immediately avoided by the covenant in the other paper, never to attempt to enforce the note by suit. Concurrently with the recognition of an indebtedness is the express stipulation that such indebtedness shall never be the foundation of a legal demand. An obligation never to sue is in law so utterly inconsistent with an obligation to pay, that, when both are contained in one paper, the latter is entirely destroyed by the former, and no legal remedy can be invoked on the instrument. The two papers having been executed contemporaneously, and constituting but one transaction, it is unnecessary to inquire whether the agreement not to sue was based upon a consideration. If a covenant never to sue is relied upon as a release of a pre-existing obligation to pay, then such covenant would not be binding, unless founded upon a sufficient consideration, but this is not true when the covenant never to sue comes into existence contemporaneously with the obligation to pay. The Code declares that "a covenant never to sue is equivalent to a release." Civ. Code, § 3714. The present case seems to be very similar to the case of Bank v. Janes, 66 Ga. 286. In that case an administrator signed a note, as such, in renewal of a debt due by his intestate, and the payee in the note agreed that the note should "never in any way or manner prejudice" the maker individually. This promise was contained in a letter making request for the note, and the note was given with this understanding. It was held that the "agreement was, in effect, a covenant never to sue, and operated to release the maker as an individual, as against the payee or one who took the note after maturity." See, also, Kendrick v. O'Neil, 48 Ga. 631; 5 Lawson, Rights, Rem. & Prac. 2577. The obligation undertaken by James J. Monroe being never to sue the defendant upon the note, the paper containing this obligation was, in law, a release of any liability on the part of the defendant growing out of the signing of the note; and a verdict in favor of the plaintiff was contrary to law, and was properly set aside. Judgment affirmed. All the justices concurring.

$300 or more, and "the terms and time of payment" are not stated in the notice and advertisement, a contract made in accordance with a bid submitted under such defective notice and advertisement is illegal.

2. Without the preliminary sanction of a popular vote, as required by the constitution, county commissioners have no authority to contract to have a court house built on the credit of the county, at a price in excess of the available funds on hand together with such taxes as may be lawfully levied for that purpose during the year the contract is made.

3. When necessary, county commissioners may levy an extra tax for having a court house erected, and, while they should be restrained from using the proceeds of such taxation in carrying out an unauthorized contract entered into by them, there should be no interference with the collection of the tax for the purpose of having a court house built therewith under a contract to be made in pursuance of the provisions of sections 344 et seq. of the Political Code.

(Syllabus by the Court.)

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

Action by A. H. Dyer and others against W. W. Erwin and others, county commissioners of Union county. Judgment for defendants, and plaintiffs bring error. Affirmed, with directions.

The following is the official report:

In June, 1898, Erwin and others, commissioners of roads and revenues of Union county, advertised for sealed proposals for the building of a court house for that county. "The terms and time of payment" were not stated in the notice and advertisement for bids. The bid made by M. B. McGinty, under such notice and advertisement, was accepted by the commissioners, and on August | 10, 1898, they entered into a contract with him, by the terms of which he was to build a court house for the county for the sum of $11,590, payments to be made as the work progressed, upon estimates of architects, and final payment when the building should be completed, which should not be later than August 10, 1899. Soon after this contract was made, the commissioners had the old court house torn down, as being unsafe. Afterwards the question of whether bonds for $12,000 should be issued by the county to pay for building a new court house was submitted to the qualified voters of the county, at an election held for that purpose, and the result was against the issuance of bonds. Subsequently, on October 6, 1898, the commissioners levied an extra tax of 2 per cent. upon all the taxable property in the county, "for the purpose of building a new court house." Dyer and others, citizens and taxpayers of the county, presented their petition to the circuit judge, asking that the commissioners be restrained from carrying out the contract with McGinty, from proceeding any further with the erection of the court house, and from paying McGinty any of the public money on such contract, and that the commissioners and Brockett, the tax collector, be restrained from collecting the extra tax of 2 per cent. The petition

alleged that the contract with McGinty was illegal, because the notice and advertisement for bids did not state "the terms and time of payment," and because the contract was an effort to create a debt against the county by the commissioners without the preliminary sanction of a popular vote, as required by the constitution. The petition also alleged that there were no funds in the treasury of the county for building a court house or for any other purpose. The answer of the commissioners denied this, and alleged that there were "about $1,000" in the treasury, "some $400" of which they had appropriated to the payment of architects for plans, etc. Nothing more was submitted on this matter. The answer further alleged that "the taxable property of said county is about $535,000," and that since the tearing down of the old building there has been no court house in the county and no place where court could be held. The defendants prayed that, if the extra tax could not be legally paid to McGinty, under the contract with him, they be allowed to use it in having a court house built for the county. Upon the hearing, the material facts being as above stated, the judge refused to grant an interlocutory restraining order, and the petitioners excepted.

H. H. Perry and V. M. Waldroof, for plaintiffs in error. W. E. Candler, W. A. Charters, and J. W. H. Underwood, for defendants in error.

FISH, J. 1. Sections 344-346 of the Political Code, relating to contracts of counties for public buildings, etc., provide that the notice and advertisement for public bids or sealed proposals, as therein prescribed, when the cost is to be $300 or more, shall embrace such details and specifications as will enable the public to know the extent and character of the work to be done, "and the terms and time of payment," and that it shall be unlawful for the county authorities to let out any contract for building any public building unless the provisions of these sections be complied with. It is evidently to the interest of the public that these statutory requirements should be strictly enforced. The advertisement in this case contained nothing whatever as to "the terms and time of payment," which were to become a part of the contract to be let out for the erection of the court house, and it therefore follows that the contract made with McGinty, in accordance with his bid or proposal submitted under such defective advertisement, must be declared illegal.

2. Under the contract with McGinty, the commissioners without the preliminary sanction of a popular vote, as required by the constitution, sought to bind the county to pay him the sum of $11,590 for building a court house. If the commissioners undertook, by this contract, to create a liability against the county, which was to be dis

sioners of roads and revenues to levy an extra tax sufficient to have one built. Sections 351, 352, 395, 396, Pol. Code; Lewis v. Lofley, and Commissioners of Habersham Co. v. Porter Mfg. Co., supra. They prayed in their answer that, if the contract with McGinty should be declared to be illegal, they might be allowed to use the proceeds of the levy of the extra tax in having a court house erected. We think this prayer should have been granted; for while we are of the opin

fully levied, during the year 1898, or partly with such funds and partly with such taxes, then the contract did not create a debt against the county, within the meaning of the constitution, and was valid without such preliminary sanction of a popular vote. The law upon the subject is now well settled in this state. Butts v. Little, 68 Ga. 272; Lewis v. Lofley, 92 Ga. 804, 19 S. E. 57; Commissioners of Habersham Co. v. Porter Mfg. Co., 103 Ga. 613, 30 S. E. 547; City Council of Dawson v. Dawson Water-Works Co. (decided at the present term, and not yet officially reported) 32 S. E. 907. In the lastnamed case, Mr. Justice Cobb delivered a very able and well-considered opinion, in which all the decisions of this court are reviewed, and some of them, in part, overruled. It appears. from the record in the case under consideration that an extra tax of 2 per cent. was levied by the commissioners of Union county, on October 6, 1898, to be collected during that year, for the purpose of building a new court house, and that the total value of the taxable property in the county was only "about $535,000." This levy of 2 per cent. would therefore produce $10,700, which would be $890 less than the amount which was to be paid to McGinty under the contract. The record does not show how this deficit was to be met, and we must presume that the intention was to levy, during the next year, an additional tax for that purpose; thus creating a debt against the county without the prerequisite assent of two-thirds of the qualified voters thereof, and rendering the contract void. While the commissioners allege in their answer that there were "about $1,000" in the treasury of the county when the contract with McGinty was made, and that they had expended "some $400" of that sum in paying architects for drawings, plans, and specifications, yet they do not allege that the balance, or any part of it, can be legally applied to paying McGinty for building the court house, and, even if the whole of such balance could be legally so appropriated, there would still be a deficit left to be provided for by future taxation.

3. As there was no court house in the county, and as the necessary two-thirds of the qualified voters thereof had failed to vote for the issuance of bonds to erect one, at an election held for that purpose, it was not only the right, but the duty, of the commis83 S.E.-5

1. It is competent and lawful for an insurance company, in defense to an action upon a fire policy purporting to have been issued by it, to plead that the same was never in fact delivered, but merely handed to the person therein named as the insured, under an agreement that it was not to become binding upon the company until he had canceled another policy in a different company insuring the same property, which was never in fact done; and parol evidence is admissible to prove a plea of this kind.

2. Persons related within the prohibited degree to members of a mutual fire insurance company, who are liable to be assessed for the purpose of raising the money to pay losses incurred by it, are incompetent to serve as jurors on the trial of an action against such company upon one of its policies; and where persons so related actually served as jurors on such a trial without the knowledge or consent of the losing party, a new trial should be granted, notwithstanding the ignorance of these jurors that their kinsmen were members of the company. It is not in such a case incumbent upon the plaintiff to ascertain in advance of the trial who are the members of the company, with a view to having them excluded from the panel of jurors. (Syllabus by the Court.)

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

Action by W. F. Moore against the Farmers' Mutual Insurance Association. Judgment for defendant, and plaintiff brings error. Reversed.

W. M. Howard and Saml. H. Sibley, for plaintiff in error. H. McWhorter, for defendant in error.

COBB, J. W. F. Moore sued the Farmers' Mutual Insurance Association upon a policy of fire insurance. The defendant pleaded, among other things, that at the time the policy sued on was issued the plaintiff had

a policy of insurance in another company on the same property, and that it was distinctly agreed between the parties that the policy issued plaintiff by the defendant should not become operative until the plaintiff canceled the other policy, and that, if this was not done, the policy sued on should become void, and of no effect; that plaintiff failed to cancel the other policy, but left the same open and operative, whereby the policy issued by the defendant became null and void; that, as soon as defendant was informed that plaintiff was claiming to be a member of the defendant association, and that it was liable upon the policy issued him, defendant offered, and does now offer, to refund to plaintiff the premium paid by him to its agent. Upon the trial a verdict was rendered in favor of the defendant. Plaintiff made a motion for a new trial upon grounds hereinafter referred to, and, upon the same being overruled, he excepted.

1. One of the grounds of the motion for a new trial was as follows: "Because the court erred in admitting the following testimony of W. J. Davenport, a witness for the defendant: The policy was delivered to Mr. Moore upon the condition that it was not to be operative until he canceled the policy in the Hartford.' Said testimony was objected. to at the time (and all other testimony of the same import was so objected to) on the ground that parol evidence was not admissible to impeach the delivery to the plaintiff, or to contradict or vary the written policy." If the effect of the evidence objected to was to add to, take from, contradict, or vary the terms of a valid written contract, the evidence was, of course, inadmissible. Civ. Code, §§ 3675, 5201. This, however, was not the purpose of the testimony. It was offered, not to vary the contract, but to prove a state of facts from which it would be manifest that no contract of insurance had ever been entered into between the parties. The controversy between the parties was whether or not the paper sued on constituted a contract between them. If the paper contained a contract of insurance, there was no dispute as to its terms; nor was there any pretense that either party was bound in any other way than that set forth in the writing. Did this writing constitute a contract? Had each party assented to it? And had it become a complete and binding agreement between them? If it did constitute a contract between them, then it must be looked to to determine the terms and conditions of the contract, and parol evidence would not be admissible to vary any of the stipulations therein contained. The evidence admitted did not in any way alter any stipulation in the paper claimed by the plaintiff to be a contract of insurance; the effect of the testimony being simply to show that there was no contract between the parties. The paper had been delivered to the plaintiff, but the parties had agreed that it should not be a contract until the plaintiff had per

formed certain acts, which were expressly made conditions precedent to the completion of a contract between them. It is true that a manual delivery of a paper purporting to contain a contract of insurance is prima facie evidence of a binding contract of that character. 1 May, Ins. §§ 56, 60. But the purpose of the testimony admitted was to rebut the presumption arising from the possession by the plaintiff of the policy. It has been held by the English courts, as well as by courts of many of the states of the Union, that evidence of the character admitted in the present case is admissible, and that the admission of the same does not infringe upon the well-settled rule which prohibits the introduction of oral testimony to vary the terms of a written contract. In the case of Pym v. Campbell, 6 El. & Bl. 370, Lord Chief Justice Campbell uses this language: "No addition to or variation from the terms of a written contract can be made by parol, but in this case the defense was that there never was any agreement entered into. Evidence to that effect was admissible, and the evidence given in this case was overwhelming. It was proved in the most satisfactory manner that before the paper was signed it was explained to the plaintiff that the defendants did not intend the paper to be an agreement till Abernethie had been consulted, and found to approve of the invention; and that the paper was signed before he was seen only because it was not convenient to the defendant to remain. The plaintiff assented to this, and received the writing on those terms. That being proved, there was no agreement." In Wallis v. Littell, 11 C. B. (N. S.) 369, the defendant pleaded that the agreement declared on was made subject to the condition that it should be null and void if a named person should not, within a reasonable time after the making of the agreement, consent and agree to the transfer of a certain farm to the plaintiff, and it was held that "it was competent [for] the defendant to prove by extraneous evidence this contemporaneous oral agreement; such oral agreement operating as a suspension of the written agreement, and not in defeasance of it." In Faunce v. Insurance Co., 101 Mass. 279, a suit was brought upon a policy of insurance. The plaintiff undertook to show that the defendants agreed to issue such a policy as was sued on, and that the terms on which it was to be issued were fully complied with; that the policy was written and executed, and thereby became a valid contract; and therefore, though the paper was not delivered, and remained in the hands of the defendants or their agents, that it was her property, and would support her action. To meet this, the defendant proved by parol that it was agreed between the parties that the policy should issue, not in addition to, but as a substitute for, a policy previously made, which was to be surrendered; that the earlier policy was not surrendered, but had been enforced and

paid. It was held that it was competent to prove this defense by parol evidence, "because the evidence is not to vary the contract, but to prove whether any contract was made. No written contract passed from one party to the other; and the point in controversy is whether the parties agreed that a certain paper, without more, should be the contract. This must, of course, be proved by parol." See, also, Markey v. Insurance Co., 126 Mass. 158. In Benton v. Martin, 52 N. Y. 570, the court of appeals of New York held: “An instrument not under seal may be delivered upon conditions the observance of which, as between the parties, is essential to its validity; and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions upon which the delivery was made. And this is so as between the parties to it or those having notice, although the instrument be negotiable. The annexing of such conditions to the delivery is not an oral contradiction of the written obligation." The same court, in Reynolds v. Robinson, 110 N. Y. 654, 18 N. E 127, held that "parol evidence is admissible to show that a writing which is, in form, a complete contract, of which there has been a manual tradition, was not to become a binding contract until the performance of some condition precedent resting in parol." The court, however, said that, to avoid "mistake or imposition, this rule should be cautiously applied, and confined strictly to cases clearly within its reason." A similar ruling was made by the supreme court of New York in the case of Harnickell v. Insurance Co., 40 Hun, 558, which was affirmed in 111 N. Y. 390, 18 N. E 632. See, also, Blewitt v. Boorum, 142 N. Y. 357, 37 N. E. 119. Evidence of this character was held admissible by the supreme court of Maryland in the case of Beall v. Poole, 27 Md. 645, it being there said that: "Where a question is raised as to the existence of a partnership, parol proof proffered to show that the articles of co-partnership was a paper, which it was agreed among those who signed it should not be given up by the party who prepared it, and who himself was not to be bound by it until he should be satisfied, by a schedule produced to him by two of the parties, that their indebtedness did not exceed a certain amount, is admissible as evidence to prove that the partnership did not in fact exist among all the parties until the condition upon which the paper was to take effect was complied with." In the case of Sweet v. Stevens, 7 R. I. 375, it was held that evidence of the character admitted in the present case was admissible. Bulloch, J., in the opinion of the court, says: "The question here is not a question touching the consideration of a check, a want or failure of which, between the original parties, may be shown. Neither is it, upon the facts stated, a question whether parol evidence may be offered to vary or change an absolute written promise into a

conditional one; but, rather, whether it is competent to show, by parol, that such written promise grew out of an oral agreement or negotiation, which agreement was inchoate · and unexecuted in fact by either party, not to be regarded as obligatory, but its operation and efficiency suspended until the happening of an event then in futuro. In such a case the rule which presumes the written instrument to embody the entire contract and all its stipulations does not apply. The oral evidence is offered, not to contradict or vary the written, but, admitting, seeks to avoid it by showing that, as an entire and independent agreement, it has no present legal effect. An agreement, although reduced to writing and signed, is not necessarily operative from its apparent delivery, even if there be nothing upon its face to show that its operation is suspended. Its actual and complete delivery, in intent, may be made to depend upon some event thereafter to happen. In the meanwhile the agreement may rest formally in escrow, in the hands of a third person, or it may be delivered to the party himself in the nature of an escrow, the intervention of a third person not being absolutely necessary to make the transfer, in effect, conditional." It was decided by the supreme court of Connecticut in McFarland v. Sikes, 54 Conn. 250, 7 Atl. 408, that: "Proof that at the time a note was executed and put into the hands of the payee an agreement was made that it should be returned to the maker upon a certain day if he should then demand it, does not contradict or attempt to vary the terms of the note, and the agreement may be proved by parol evidence." The rule is thus stated by the supreme court of Minnesota in Westman v. Krumweide, 30 Minn. 313, 15 N. W. 255: "Parol evidence is admissible to show that a contract not under seal, delivered by the maker to the party in whose favor it runs, was not intended to be operative as a contract from its delivery, but only on the happening of some future contingent event, though that be not expressed by its terms." This decision was followed in the case of Skaaraas v. Finnegan, 31 Minn. 48, 16 N. W. 456. The admissibility of such evidence is also recognized by the following text writers: 1 Bac. Ben. Soc. § 276; 1 Joyce, Ins. 96, 97; Cooke, Ins. § 24; Browne, Parol Ev. § 32. We have found nothing in the decisions of this court in conflict with the principle established by the authorities above cited. The precise question made in the present case seems never to have been passed upon by this court. In Crawford v. Foster, 6 Ga. 202, it was held that a bond may be delivered as an escrow by the sureties to the principal obligor, and that it was not error to admit parol evidence to show that two of the sureties on a sheriff's bond had signed upon the condition that the instrument was not to be considered as executed until the signatures of two other persons had been obtained as sureties; the bond having been