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P. P. Du Pre, for plaintiff in error. E. W. Coleman, for defendants in error.

ATKINSON, J. Judgment reversed. All the Justices concur.

(127 Ga. 65)

CABLE CO. v. WALKER. (Supreme Court of Georgia.

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Dec. 12, 1906.)

1. EVIDENCE DECLARATIONS OF AGENT PROOF OF AGENCY.

The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties, and, the fact of agency once established, declarations and admissions of the person whose agency is shown, within the scope of his authority, are admissible in evidence against the principal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 887-892.]

2. SALE-ACTION FOR PRICE-EVIDENCE.

"There was sufficient evidence to authorize the jury to find in favor of the defendant. 3. TRIAL-VERDICT-IMPEACHMENT.

A juror will not be heard directly or indirectly to impeach his verdict.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 813.]

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by the Cable Company against W. B. Walker. Judgment for defendant, and plaintiff brings error. Affirmed.

In March, 1903, Walker purchased a piano from the Cable Company, and signed a writ ten contract agreeing to pay $365 in monthly installments for the same. Upon the delivery of the piano, Walker made some objection to the instrument that was delivered, and in February, 1904, he wrote to the Cable Company, claiming that they had violated certain "precontract representations made by the agents of said company," and that he would not make further payments on the same. In May, 1904, the Cable Company filed a declaration in attachment to recover the balance of the purchase price, $335. The defendant in his answer and amendment thereto alleged that the piano delivered by the company was not the one contracted for, but was a greatly inferior instrument. Defendant also charged that plaintiff had altered the written contract, and that said contract was void because of said breaches by plaintiff. The evidence was conflicting, and the jury found for the defendant. The plaintiff moved for a new trial on the general grounds, and further complained that the court erred in permitting Mrs. Walker, a witness for the defendant, to testify as to a conversation that she had with Mr. Wells, a salesman of the plaintiff company, in which Wells made certain promises to the witness in regard to the piano. The objection to this evidence was "the lack of authority on the part of Wells to represent the company." The plaintiff also alleged that the jury was not impartial, and introduced an affidavit of one of

the jurors setting up an alleged improper act on the part of another juror during the consideration of the case, which affidavit the court rejected. The motion for a new trial was overruled, and the plaintiff excepted.

Joseph W. & John D. Humphries, for plaintiff in error. O. E. & M. C. Horton, for defendant in error.

BECK, J. (after stating the facts). 1. It was not error for the trial court to permit Mrs. Walker, the wife of the defendant, to testify that, when the plaintiff delivered at the residence of the defendant a certain piano, she immediately called up the plaintiffs, asking for Mr. Wilkins (a salesman of the plaintiff) and that Wells answered the telephone, stating that Mr. Wilkins was out of town, and that she then told Mr. Wells that the piano delivered was not the instrument purchased, and that he replied that, if there was any mistake at all they would make it alright, and that she then insisted on his taking the piano back and not leaving it at the residence of the defendant, but he (Wells) insisted that the piano be left at the residence and that it would be no trouble to come out and select the one she really bought, and that, when Mr. Wilkins came back, if a mistake had been made and the wrong plano sent, he would gladly send the right one. The objection urged was that the conversation, of which the foregoing is the substance, between Mrs. Walker and Mr. Wells "was inadmissible for lack of authority on the part of Wells to represent the company as claimed." We are of the opinion, however, that facts were in proof from which the jury would have been authorized to infer that Wells did have authority to make the statements, representations, and agreements alleged to have been made by him, for Mrs. Walker had testified that, while at the plaintiff's store where the piano was purchased, she had seen Wells there waiting on customers and showing pianos, and that, though she had begun negotiations for the purchase of an instrument with Wilkins, another salesman, she had finished with Wells. Though the testimony of other witnesses was in sharp conflict with this testimony of Mrs. Walker, it was for the jury to determine whether her account of what transpired was true, and, as they evidently did accept it as the truth of the matter, they could infer that, relatively to the sale of the piano and the delivery of the one alleged to have been purchased, Wells was the agent of the plaintiff, and all that he said in the above conversation over the telephone were sayings of an agent dum fervet opus, and within the scope of his employment.

2. The jury rendered a verdict for the defendant "on the plea of the rescission of the contract." As a matter of strict law, there was no plea of rescission. But the defendant did plead that the company' had never delivered the instrument purchased by him; that it

had delivered a totally different instrument, far inferior to the one contracted for; that objections were made by defendant to its delivery at his residence; that he had objected to its remaining there; that he had persistently demanded that it be carried back; and that it was only permitted to remain while it was there upon plaintiff's assurance that “everything should be made eutirely satisfactory." The defense was really not a repudiation of the contract, but a contention that plaintiff had never complied with the contract. And, giving the verdict a reasonable construction in view of the pleadings and the evidence, the finding of the jury was in favor of that plea, although they called it a "plea of rescission." Such was the view of the trial judge as set forth in his order overruling the motion for a new trial.

3. The last ground of the motion for a new trial complains that the jury was not impartial. Movant attached an affidavit of one of the jurymen by which it was sought to prove the facts upon which this ground was based. But, as has been uniformly held, a juror will not be heard to impeach his verdict.

Judgment affirmed. All the Justices con

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Generally the statute of limitations, in cases where the agency is a general and continuing one, begins to run on the principal's right of action against his agent from the time of the termination of the agency, or from the time the agent has rendered an accounting to his principal and offered to settle, or from the time the principal has made a demand upon the agent for an accounting and the latter has refused or neglected to render it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 291.]

(Syllabus by the Court.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by the Rome Tribune Company against William A. Knowles. Judgment for plaintiff. Defendant brings error. Affirmed.

The Rome Tribune Company, a corpɔration engaged in the publication of a newspaper at Rome, Ga., filed a suit against William A. Knowles, setting forth in its petition the following complaint and the facts leading up thereto: About September 1, 1894, the defendant was elected a director of the company, and was at the same time elected its general manager. He held these offices continuously until April 1, 1903, with all the powers and privileges incident thereto. As a director and as the general manager of the company, he had full control of its business, collecting all moneys and making all disbursements, and being intrusted with each and every detail of the business; and,

as such, he "occupied a continuing trust for its benefit, and was, in fact and effect, the trustee of said Rome Tribune Company." The plaintiff had the utmost confidence in his ability, honesty, and integrity, and Intrusted him with the full custody and control of all funds and property belonging to the company, and with full and complete control of all of its business. During the time he acted as a director and general manager, the defendant collected moneys belonging to the company to the amount of $590.16, "for which he did not account to said Rome Tribune Company, defrauding it of said sum in violation of his trust, as aforesaid." The books of the company covering this period show a shortage in the defendant's private account of $2,419.96, for which sum he has fraudulently failed to account, in direct violation of his trust. An itemized statement of the sum, so collected and unaccounted for, is made to appear by exhibits attached to the petition. By reason of the facts set forth, the defendant is indebted to the company in the sum of $3,010.12, which he has wrongfully and fraudulently converted to his own use, and for which he refused to account when a demand therefor was made upon him by the company on June 19, 1905, and which he still refuses to pay. The petition was filed June 20, 1905. Some of the items shown by the statements attached are dated as early as May, 1895, while others are dated within the period of four years next preceding the Institution of the suit. The defendant demurred generally to the petition, and also specially on the ground that each and exery item shown by the exhibits to the petition was barred by the statute of limitations. It is to the overruling of this demurrer that exception is taken.

Dean & Dean, for plaintiff in error. Fouché & Fouché and Paul H. Doyal, for defendant in error.

EVANS, J. (after stating the facts). The relation between a corporation and its di rector and general manager, who has full control of the business of the corporation, collecting all of its moneys and making all disbursements, and intrusted with each and every detail of the business of the corporation, is not technically that of trustee and cestui que trust, but that of principal and agent. 3 Clark & Mar. Priv. Corp. § 755f. See Southern Star Co. v. Cleghorn, 59 Ga. 782. At least, such a relation would not be included among subsisting trusts, cognizable only in a court of equity, which by Civ. Code 1895, § 3198, are declared to be without the ordinary statutes of limitation. The allegations of the petition present the case of a principal suing his general agent for certain moneys misappropriated and unaccounted for by the general agent. As a general rule, in cases where the agency, is a general and continuing one, the statute of limitations begins to run on the principal's right

of action against his agent from the time of the termination of the agency, or from the time the agent has rendered an accounting to his principal, and offered to settle, or from the time the principal has made a demand upon the agent for an accounting, and the latter has refused or neglected to render it. Teasley v. Bradley, 110 Ga. 497, 35 S. E. 782, 78 Am. St. Rep. 113. The petition alleges that the agency was a continuous one from September 1, 1894, to April 1, 1903. The petition must be construed to mean, either that the defendant was elected director and general manager for an indefinite term, which was terminated on the latter date, or that he was elected for a definite term embracing the period within these dates. In either case, the principal's right of action against the general agent wou'd not accrue until the termination of the agency, unless, as does not appear, the defendant was under a duty to render an accounting before that time. If, on the trial, it should develope that the defendant was elected director and general manager for a definite term, and re-elected for other terms during the period of time intervening the years 1894 and 1903, then, upon the expiration of each term, the principal would have had its right of action for liabilities of the agent up to that time. But this is not the case made by the petition, which alleges a cause of action by a principal against his continuing general agent, which accrued upon the termination of the agency within four years of the filing of the suit. The action was, therefore, not on the face of the petition barred, and the court correctly so held on demurrer.

Judgment affirmed. All the Justices con

cur.

(127 Ga. 82)

AMERICAN MORTGAGE CO. OF SCOTLAND, Limited v. RAWLINGS. (Supreme Court of Georgia. Dec. 12, 1906.) 1. NOVATION-WHAT CONSTITUTES.

Where A. purchases a tract of land from B. and gives a purchase-money note therefor payable to B. "or order," and B. transfers said note by indorsement, together with the reserved title to the land, to C., C. becomes thereby a party both to the note and to the contract of purchase, and, if said note becomes barred by the statute of limitations, and A. enters into a new greement with C., whereby A. promises to pay to C. the balance due on said note by installments running through several years, the consideration remaining the same, and no new security being added, the fact that the holder of said note has been substituted as payee, and the time of payment definitely extended does not constitute such a novation between said maker and holder as would extinguish the original debt and create a new one. See Wofford v. Gaines, 53 Ga. 485; Lott v. Dysart, 45 Ga. 358: 21 Am. & Eng. Enc. Law (2d Ed.), 663; McDonnell v. Alabama Gold Life Ins. Co., 5 South. 120, 85 Ala. 401.

2. BILLS AND NOTES-ATTORNEY'S FEE-LIABILITY.

The original note sued on in this case contained a stipulation to pay 10 per cent. at

torney's fees "in case this note is collected by suit.' This obligation to pay attorney's fees according to the terms of the original contract was a part of the liability revived or extended, and this is true although the law in regard to contracts for attorney's fees had been changed in the interval between the execution of the note and the date of the new promise, and again between the date of the new promise and the commencement of the present action. Bird v. Adams, 7 Ga. 509; Vines v. Tift, 7 S. E. 227, 79 Ga. 301; Stoner v. Pickett, 42 S. E. 41, 115 Ga. 653.

3. SAME.

The present action having been brought on the original note for the amount of principal and interest remaining due and unpaid, as well as for attorney's fees, the trial judge erred in refusing to allow the attorney's fees in the judgment which he rendered.

(Syllabus by the Court.)

Error from Superior Court, Washington County; T. A. Parker, Judge.

Action by the American Mortgage Company of Scotland, Limited, against William Rawlings. From a judgment for part of the amount of plaintiff's claim, it brings error. Reversed.

The mortgage company brought suit against Rawlings, and alleged, in substance, that on the 15th day of February, 1884, Rawlings made and delivered his promissory note pay. able to the order of F. W. Dunton on the 1st day of March, 1887; that said note was given for the purchase money of certain described lands, and contained a stipulation for the payment of 10 per cent. attorney's fees in the event it was collected by suit; that the note was not under seal, and a copy was attached to petition; that Dunton gave to defendant a bond for title to said land; that thereafter Dunton transferred said note and the title to said land to petitioner; and that on the 5th day of July, 1897, the defendant and the plaintiff entered into a written agreement in reference to the payment of said note, which agreement was as follows: "Georgia, Washington county. This agreement made and entered into this the 5th day of July, 1897, between William Rawlings, party of the first part, and the American Mortgage Company of Scotland, Limited, party of the second part, witnesses: That whereas party of the first part, on November 4th, 1884, purchased of F. W. Dunton a certain tract of land in said county and described as follows [describing the land for which the above note was given] giving to said Dunton his purchase-money note for the sum of $4,000, due March 1st, 1887, with interest from date at the rate of eight per cent. per annum; and whereas said note has by indorsement and transfer become the property of the second party, and said second party holds the title to the land to secure said note, which is now in the hands of the attorney for said second party for collection. Now therefore, in consideration of the payment by the first party of one hundred and fifty dollars cash, receipt of which is hereby acknowledged, and also other agreements contained herein, the par

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ties agree as follows: (1) Party of the first part will, on October 1st, 1897, pay on account of said note and interest the further sum, [the agreement being that defendant might pay the balance then due, in Installments running through several years]. (2) The second party agrees to extend the time for paying said note as above stated, and not to enforce the same by suit unless default should be made in some of the payments above stated. (3) It is further agreed that the second party shall have and continue to have a lien upon said land to secure the payment of the balance of said purchase money until the same is fully paid." Plaintiff prayed judgment against defendant for the principal sum, interest, and attorney's fees as provided in the original note. Defendant admitted that he was indebted for the principal and interest, but denied that he was bound for the attorney's fees. Movant assigns error upon the refusal of the trial judge to include in the judgment rendered by him the amount of attorney's fees as provided in said original note.

W. E. Simmons, for plaintiff in error. Howard & Jordan and Jas. K. Hines, for defendant in error.

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When the sanity of one of the parties to a case is in issue, it is proper to allow nonexpert witnesses to testify that they know such party and have seen nothing in his appearance or conduct to indicate insanity.

[Ed. Note. For cases in point, see Cent. Dig. rol. 20, Evidence, § 2242.]

3. WITNESSES-EVIDENCE-BIAS OF WITNESS. In an action of slander, it is wholly immaterial, as an independent and isolated fact, who first communicated to the plaintiff the slanderous words spoken of him, and proof that this information was first furnished him by the witness on whom he mainly relies to establish the slander is not competent for the purpose of discrediting such witness by showing his bias or prejudice against the defendant, when the witness has unreservedly admitted on the stand that his feelings towards the defendant are not good.

4. SLANDER-INSANITY AS DEFENSE.

In charging upon the defense that, at the time of the alleged slander, the defendant was mentally unsound and irresponsible for his conduct, it is erroneous to instruct the jury, in effect, that, notwithstanding this defense be

satisfactorily made out, the plaintiff would be entitled to recover if the jury should find that a plea of justification filed by the defendant was not sustained by the evidence, and he was of sound mind when he interposed this plea. 5. TRIAL-INSTRUCTIONS.

A charge that, should the jury find for the plaintiff, they could in no event find more than the amount sued for, although they might think the plaintiff "was entitled to a great deal more is open to the criticism that it carries with it the intimation that the idea had suggested itself to the presiding judge that the proof of the wrong done to the plaintiff was so strong that the jury might, unless cautioned, be thereby misled into awarding an amount which they felt was better proportioned to the injury suffered than the sum claimed as damages.

(Syllabus by the Court.)

Error from City Court of Carrollton; W. C. Hodnett, Judge.

Action by Ara Pointer against S. A. Proctor. Judgment for plaintiff. Defendant brings error. Reversed.

Leon Hood and E. S. Griffith, for plaintiff in error. Beall & Adamson, for defendant

in error.

EVANS, J. This was an action of slander. The plaintiff obtained a verdict, which the court refused to set aside on motion, and this is the complaint before this court.

1. The court allowed a witness to testify that she understood the defendant to mean by the words spoken in her presence that the plaintiff had been guilty of fornication, and charged the jury on this subject as follows: "Witnesses may give their understanding of what is meant by words spoken, when the words themselves are ambiguous or do not clearly indicate what the person using them meant by the words." Testimony of this character is admissible (Hawks v. Patton, 18 Ga. 52, 63 Am. Dec. 266; Howe Machine Co. v. Souder, 58 Ga. 64), and it was proper for the court to so instruct the jury.

2. One of the pleas relied on by the plaintiff was that at the time of the publication of the alleged slander, she was mentally unsound and irresponsible. While the plaintiff was testifying, she was asked, "What conduct have you seen [the defendant] engage in that indicated that she was crazy?" to which question the plaintiff replied, "Nothing has been in her conduct since I knew her to indicate that she was insane. She acted like any one else; when she was in a bad humor, she was bad. I don't know hardly how she would act. She would use just any sort of language that come to hand." The defendant objected to this testimony on the ground that the witness was a nonexpert and no facts had been established upon which she could base any opinion as to the sanity or insanity of the defendant. It appeared from the evidence that the witness was acquainted with the defendant, and had known her for some time. This being so, it was permissible to allow the witness to testify that she had observed nothing in the appearance or conduct of the de

fendant to indicate Insanity. Herndon v. State, 111 Ga. 178, 36 S. E. 634.

But

3. One of the witnesses relied on by the plaintiff to establish the publication of the alleged slander was Mrs. Mollie Steen. The plaintiff, on cross-examination, was asked from whom she first received the information as to the slanderous words spoken of her, and the plaintiff replied that Mrs. Steen first sent her word. On motion of plaintiff's counsel, the court excluded the answer as irrelevant. Certainly it was wholly immaterial, as an independent and isolated fact, who first communicated to the plaintiff information as to the publication of the slander. counsel for the plaintiff in error insists that the testimony was pertinent, because "the person who sent the word was the main witness for the plaintiff, and the same went to her credit, she having testified as a witness in the case that her feelings towards the defendant were not good," and the defendant "had the right to know and show the court and jury the interest the witness Mrs. Sam Steen had and was taking in the case." Since the witness had already admitted that "her feelings towards the defendant were not good," it was not permissible for the defendant to press the inquiry further and bring out in detail circumstances indicating that the witness was partial to the plaintiff or prejudiced against the defendant. Had the witness professed indifference as between the parties to the case, it would have been competent to show that she was, in point of fact, a partisan and had taken an interest in the prosecution of the case. But the admission of the main fact of Ill feeling rendered proof of circumstances tending to establish that fact unnecessary, and therefore inadmissible.

4. The defendant denied that she used the language alleged in the petition. She further pleaded that she was very feeble in body, and her mind was so impaired by age, disease, and overwork that she was irresponsible for her conduct, and had she made the statements attributed to her, she could not be held accountable for the same because of her mental condition at the time of making them. The defendant further pleaded that, from the information she had in regard to the plaintiff, she was a woman of bad character and had been guilty of open, lascivious, and indecent conduct, and that this suit was brought for no other purpose than to worry and harrass the defendant and extort money from her without just cause. The court charged the jury: "If you believe from the evidence in this case that this defendant uttered these words and that she was not responsible, was in such mental condition at the time she uttered them as to render her incapable of slandering any one, then she would not be guilty-I mean, would not be liable in the first instance. But, if after that time, if at the time this plea was drawn, at the time she filed this plea, if she was mentally capable and responsible for her conduct at that

time, and the words set out here in this plea have not been sustained and are not

true, then putting those words in her plea would be a ratification of whatever she may have said before that, and she would be liable." This charge was erroneous. If the defendant was mentally irresponsible at the time of the utterance of the words imputed to her, she could not be held liable for their use, and no averments made in her plea, filed after the bringing of the action, could properly be considered a ratification of something she had done while insane; the charge of improper conduct made in the plea would be a publication for the first time of the slander, if any, and the cause of action therefor would then for the first time arise. If a defendant undertakes to justify the use of slanderous words, but fails to show any justification, his unsuccessful attempt to justify may be considered by the jury in aggravation of damages, but there can, of course, be no aggravation of a past wrong which has never, in legal contemplation, been committed.

5. The defendant complains that the court charged: "If you find for the plaintiff in this case, in no event could you find more than the amount sued for, although you might, in your opinion, think that the plaintiff was entitled to a great deal more." The criticism made upon this charge is that it amounted to an intimation by the court that some amount should be given the plaintiff. We cannot commend such an instruction. Its vice is that the court assumes that the evidence for the plaintiff is of so satisfactory and convincing a character that, if credit is given to it by the jury, they may think the plaintiff is entitled to recover "a great deal more" than she sues for. The charge carries with it the intimation that the idea has suggested itself to the court that the proof of the wrong done to the plaintiff is so strong that the jury may, unless cautioned, be thereby misled into awarding damages which are commensurate to the injury, regardless of the amount claimed.

In other exceptions to the charge, counsel for the plaintiff in error point out certain verbal inaccuracies which they insist were calculated to mislead the jury. We are not impressed with those minor criticisms, and will not undertake to deal with them further than to say that, the attention of the trial judge having been called to them, he will doubtless guard against similar Inaccuracy of expression when instructing the jury upon the next hearing of the case.

Judgment reversed. All the Justices con

cur.

(127 Ga. 137)

PROCTOR v. THOMPSON. (Supreme Court of Georgia. Dec. 14, 1906.) SLANDER.

This case is controlled by the decision in Proctor v. Pointer, 127 Ga., 56 S. E. 111. (Syllabus by the Court.)

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