of by demurrer. Where one enters into a valid contract for the sale of lands to another, and commits a breach of that contract by denying his obligations under it and refusal to perform, or by disposing of the property so as to render the performance of his obligation impossible, he becomes liable to the other party to the contract for damages flowing from the breach. In the present case the defendant had contracted to sell to the plaintiff the lands described in the petition. Before performance, he had sold and conveyed the same land to a stranger, thereby rendering performance upon his part impossible. Cooley v. Moss, 123 Ga. 707, 51 S. E. 625; 7 Am. & Eng. Enc. of Law (2d Ed.) 149 (5). If the allegations in the petition are true, and they are to be so taken as against the demurrer, the plaintiff had a profit of $1,100 in his bargain. That sum represents the difference between the market value of the land and the price at which he had contracted to buy; and that sum is the measure, under the pleadings, of the injury and damage sustained by the plaintiff by reason of the defendant's failure to fulfill his obligations under the contract. The law aims to place the injured party, so far as money can do it, in the position he would have occupied if the contract had been fulfilled. Such is the rule as recognized in this state. Our attention has not been called to any case decided by this court in which the rule has been relaxed, though in other jurisdictions it appears to have been, Irwin v. Askew, 74 Ga. 581; Sutherland on Damages (3d Ed.) pars. 578581.

2. The rule contained in the second headnote is so well settled that elaboration and discussion thereof is entirely unnecessary. Ansley v. Hightower, 120 Ga. 719, 48 S. E. 197.

Judgment reversed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 550)

BECKHAM v. SEABOARD AIR LINE RY. (Supreme Court of Georgia. Feb. 14, 1907.) 1. NEGLIGENCE- FIRES.

In an action to recover damages from a fire starting on the defendant's premises, as a general rule it is necessary for the plaintiff to show that the fire was unlawfully kindled or negligently started or guarded.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 28.] 2. SAME-PROXIMATE CAUSE.

Although a railroad company may be negligent in storing oil and waste in a wooden building in close proximity to the plaintiff's house, and in suffering tramps and others to occupy the building containing the inflammable substances, and to keep lights burning therein, it is not liable for the loss of an adjacent building by fire, caused by the careless or accidental act of a person not in its employ, but in its building by permission. The proximate cause of the injury is not the alleged negligence of the defendant, but the intervening act of a responsible agency.

3. SAME. If the owner of a building in flames not caused by his negligence or positive act owes any duty to adjacent proprietors to prevent the spread of flames to adjacent buildings, it is only such duty as the exigencies of the particular case may require.

(Syllabus by the Court.)

Error from Superior Court, Wilcox County; J. H. Martin, Judge.

Action by L. M. Beckham against the Seaboard Air Line Railway. Judgment for defendant, and plaintiff brings error. Affirmed.

L. M. Beckham sued the Seaboard Air Line Railway for $6,442 damages upon substantially the following allegations: He was on April 9, 1901, the owner of the Eureka Hotel, a two-story frame building of Abbeville, Ga., situated near the line of defendant's track; that on the opposite side of the right of way from the hotel defendant had erected an iron house, for the purpose of storing oil and waste, which house was a safe and desirable place for this purpose, "but that for the sake of convenience said oil and said waste, both being inflammable materials, were on said date, and for several months previous thereto, stowed and kept in a small wooden structure situated on the right of way of said defendant, north of its tracks, and in close and dangerous proximity to said hotel; that for several months previous to said date the floor of said small wooden house was allowed to remain soaked and saturated with oil, and the door of the same allowed to remain open by night and day, allowing free ingress and egress to and from said little wooden building," and tramps and others were permitted to sleep "over night" in this house where oil and waste were kept, and to burn lights therein, although the depot and defendant's agent at the depot were within 20 yards of this little house; that for at least two months before the date named, "and from day to day for the space of two months immediately preceding said date, said defendant was aware of the fact that said oil and waste were kept in said little wooden house; that the floor of the same was kept soaked and saturated with oil as aforesaid, and tramps and others slept over night and kept lights burning therein as aforesaid"; that on the date named "two negroes, who had been allowed and permitted by the defendant to sleep in this house, and to keep a lamp burning therein, overturned the lamp and ignited the waste, and that the building, being highly inflammable for the reasons aforesaid, was soon enveloped in flames threatening to communicate same to plaintiff's hotel, which fact was well known to defendant's agent in charge of its depot; that the little wooden building could easily have been dragged from this position of proximity to defendant's hotel by an engine of defendant, which was there steamed up, but that defendant's agent, and the engineer of said train, also an agent of defendant, though implored to move same, refused to do so until

the flames were communicated to petitioner's hotel; that plaintiff's hotel was destroyed as aforesaid by defendant's negligence, which consisted in storing and keeping such inflammable material in this house within 50 feet of and in dangerous proximity to the hotel, in permitting its door to be left open, in permitting tramps and others to occupy and sleep in the same, and to keep lights burning therein, in not keeping the oil and waste in the iron house made for that purpose, in allowing the floor of the house to become saturated with oil and made highly inflammable, and in neglecting and refusing to haul away said house with said engine, the same being a locomotive engine as aforesaid, when by so doing the destruction of petitioner's hotel aforesaid would have been avoided." The court allowed an amendment to the petition, alleging that on a former occasion, by reason of the oil-soaked condition of the floor, this house, while being used as a baggage room by defendant, had caught fire, greatly endangering plaintiff's hotel, and that, though well informed of the fact, defendant's agent "yet persisted in negligently and wrongfully keeping said wooden house stored with oil, the floor being soaked therewith, and highly inflammable, and in allowing the door to be open day and night." This amendment was made in order to meet a demurrer of the defendant, upon an intimation of the court that the demurrer would be sustained. After allowing the amendment, the court sustained the demurrer, and to this the plaintiff excepted.

E. H. Williams and Max E. Land, for plaintiff in error. Tom Eason and D. B. Nicholson, for defendant in error.

EVANS, J. (after stating the facts). 1, 2. The acts of negligence charged against the defendant are susceptible of two general classifications. The first consisted in storing and keeping inflammable material in a small wooden house within 50 feet of the plaintiff's property, which was destroyed by fire, in the use of this house so as to allow the floor to become saturated with oil and made highly inflammable, and in permitting the door to be left open, and suffering tramps and others to occupy and sleep in the house, and to keep lights burning therein. The second act of alleged negligence consisted in the failure to remove the house where the oil was stored after it became ignited, by attaching one of defendant's locomotives thereto which was standing nearby and under steam. In regard to the first group of alleged negligent acts, it would be unprofitable to enter into an elaborate discussion as to whether proper diligence would have required the defendant to keep its inflammable material in the iron house, rather than in the wooden house, or whether its maintenance in the manner alleged in the petition amounted to negligence or a nuisance. It is a mat

ter of common knowledge that in the operation of machinery lubricating oils are necessary. It is also commonly known that illuminating oils are in general use by railroad companies in the maintenance of necessary signal lights at night. A property owner has the right to use his property in any manner not forbidden by the law, so long as he does not offend the maxim, "Sic utere tuo ut alienum non lædas." It might be questioned whether the keeping of such material in such a house, and suffering the house to be occupied by strolling tramps, may be a nuisance. Even upon the assumption that these various acts amounted to negligence on the part of the defendant, it by no means follows that the injury sustained by the plaintiff in the destruction of his hotel was the proximate result of these alleged negligent acts. Only such damages as are traceable to the negligent act, and are the legal and natural result of the act done, are recoverable. If contingent circumstances preponderate largely in causing an injurious effect, the damages are too remote to be the basis of a recovery against the wrongdoer. Civ. Code 1895, §§ 3912, 3913. If the injury would not have resulted from the ordinary and natural consequences of the negligent acts of the party sought to be held liable, but was caused by the intervention of a responsible third party, the law will not look beyond this responsible agency doing the act directly causing the injury. ""To entitle a party to recover damages of a railroad company on account of the negligence of its agents, it should appear that the negligence was the natural and proximate cause of the injury; for, should it appear that the negligence of the railroad company would not have damaged the party complaining but for the interposition of a separate independent agency, over which the railroad company neither had nor exercised control, then the party complaining can not recover." Perry v. Central R. R., 66 Ga. 746.

The plaintiff thus describes the origin of the fire which destroyed his building: "Two negroes, who had been allowed and permitted by the defendant to sleep in said little wooden house, and to keep a lamp therein, overturned said lamp and ignited said waste," which set fire to the house of the defendant containing the inflammable material, and from which the flames were communicated to plaintiff's hotel. These negroes were not alleged to be servants or employés of the defendant. It does not appear what was the character of these persons-whether they were prudent or circumspect, or whether the use of a lamp by them was unnecessary or improper. Nor is it alleged how the lamp was overturned-whether as a result of an unavoidable accident, or of negligence on the part of these "negroes." If their act was negligent, and it did not appear that the

defendant knew them to be other than prudent persons when it permitted them to occupy the house, the primary cause of the fire could not be attributable to any negligence of the railroad company, but the parties guilty of the negligent act would be responsible for its consequences. On the other hand, if neither the railroad company nor the negroes were negligent, the fire would be the result of accident, and the defendant would not be responsible for damages caused thereby. Montgomery v. East Tenn. Ry. Co., 94 Ga. 332, 21 S. E. 571. In an action to recover damages from a fire originating upon the property of the defendant, as a general rule, it is necessary to show that the fire was unlawfully or negligently kindled, or negligently guarded. Talmadge v. Central Ry. Co., 125 Ga. 400, 54 S. E. 128. As the fire originated from the upsetting of a lamp, and as it is not alleged in what respect the railroad company was negligent in allowing the persons who overturned the lamp to occupy a building on their premises, its responsibility for the origin of the conflagration is not apparent..

3. It is further contended that, even if the railroad was not responsible for the origin of the fire, its servants and agents did not exercise ordinary care in preventing the spread of the flames from its own property to that of plaintiff. Even if under some circumstances the owner of a building in flames not caused by his negligence or positive act may owe some sort of diligence to prevent the spread of the fire to contiguous property, the circumstances alleged in the petition did not render the railroad company liable for failure to respond to. the plaintiff's request to move the burning house. Plaintiff alleges that the defendant's dereliction of duty consisted in the refusal of its agents to drag the burning house from where the fire originated to a place where it would not probably have set fire to his property. He insists that there was a locomotive on the tracks standing near by steamed up, and that he implored the engineer to move the same, and he refused to do so until the flames were communicated to his property. It is by no means apparent that this earnest request of the plaintiff was at all, feasible. does not appear that it was possible. It may have been that the heat was so intense that no attachment could be made to the house so that it could be drawn by the locomotive; or the railroad company at the time may not have been provided with such attachments as would enable it to move a burning house by connecting it with one of its locomotives. Nor is it at all clear, even if the house was not in flames, that it could have been moved by the engine. The nearness of the burning house to the track, and the size of the house, are not disclosed. The allegations in this respect are insufficient to charge the railroad company with responsi

It

bility for the burning of plaintiff's house. The judge, therefore, did not err in sustaining the demurrer.

Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 483)

SMITH v. STONE. (Supreme Court of Georgia. Feb. 26, 1907.) 1. WILLS-PROBATE-EFFECT.

The provisions of the Civil Code of 1895, § 3628, that, when a registered deed is offered in evidence, the party against whom it is offered may file an affidavit that it is a forgery, and, upon such affidavit being filed, an issue as to the genuineness of the deed shall be made up and tried, are not applicable to a certified copy of a will, duly probated, and admitted to record in the court of ordinary.

2. WRIT OF ERROR-REVIEW-HARMLESS ERROR.

This was an action for the recovery of land. The court submitted to the jury, along with the issues of title made by the petition and answer, an issue as to whether a will, which had the effect to show title out of the plaintiff, was a forgery. The evidence demanded a finding in favor of the defendant on the issue of title, and any errors that may have been committed by the judge in his rulings relating to the issue of forgery will not require a reversal of the judgment refusing to grant a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4034.]

3. DEEDS EXECUTION-SUFFICIENCY OF EVIDENCE.

Upon the trial of the issue of forgery, authorized to be made under section 3628 of the Civil Code of 1895, when a registered deed is offered in evidence, nothing is involved except the factum of the deed assailed; and, when the uncontradicted evidence shows that the deed was executed, a finding that it was a forgery is unauthorized, notwithstanding there may be evidence tending to show that the grantee had, by his conduct and sayings, estopped himself from asserting title under the deed, as against certain persons.

(Syllabus by the Court.)

Error from Superior Court, Berrien County; R. G. Mitchell, Judge.

Action by J. M. B. Smith, administrator of Mary A. S. Ball, against W. B. Stone. From the judgment, both parties bring error. Judgment on main bill of exceptions affirmed, on cross-bill reversed, with direc tion.

Smith, as administrator of Mary A. S. Ball, brought an action against Stone to recover a described parcel of land and mesne profits. The defendant filed an answer, denying title in the intestate of the plaintiff. The case came on for trial, and the defendant offered in evidence a registered deed from Mrs. M. A. S. Ball to the premises in dispute. The plaintiff filed an affidavit, attacking the deed as a forgery. The trial was suspended, and an issue of forgery made and tried. The jury returned a verdict finding the deed a forgery. The defendant made a motion for a new trial, which was overruled, and exceptions pendente lite were filed to this judgment. The case came on for

trial again at a subsequent term of the court, and the plaintiff introduced evidence tending to show that his intestate died in possession of the land, and had been in possession for more than 20 years prior to her death. The defendant offered in evidence a certified copy of the will of Mrs. Ball, which had been proved in common form, containing a devise to E. V. Ball of the premises in dispute. When this evidence was offered, the plaintiff filed an affidavit that the will was a forgery, and the judge, over objection of defendant, caused an issue to be made up as to the genuineness of the will. This issue was submitted to the jury, along with the issue made by the petition and answer. The judge held that the effect of the filing of this affidavit was to impose upon the defendant the burden of showing that the will was genuine. The jury returned a general verdict for the defendant. The plaintiff made a motion for a new trial upon various grounds, which was overruled; and in the bill of exceptions he assigns error upon this judgment. The defendant, in a cross-bill of exceptions, assigned error upon the action of the judge in causing to be made up a special issue in reference to the genuineness of the will, and in ruling that upon such issue the burden was on the defendant to show that the will was genuine. Error is also assigned upon the refusal to grant a new trial on the issue of forgery, made up when the deed was offered in evidence, and upon other rulings made during the progress of the case, which are the subject of exceptions pendente lite.

R. A. Hendricks, for plaintiff in error. Buie & Knight and H. B. Peeples, for defendant in error.

COBB, P. J. (after stating the facts). 1. The assignment of error in the cross-bill of exceptions relating to the issue made up as to the genuineness of the will wil be first considered, for the reason that the ruling we make in reference thereto will dispose of many of the grounds in the motion for a new trial filed by the plaintiff. We know of no law which authorizes a special issue of forgery to be made up in the superior court upon an affidavit filed by a party to the cause that the will under which his adversary claims title is a forgery. Section 3628 of the Civil Code of 1895, which provides that a special issue of forgery shall be made up when an affidavit is filed that a deed is a forgery, is, by its terms, applicable only to a registered deed. There is nothing in that section which authorizes such a procedure in the case of a will; nor does it embrace all deeds, but only the deeds which have been registered in strict conformity to law. If the deed has been registered, but not in the proper place, or not in the proper manner, than this section of the Code does not apply. The procedure is

56 S.E.-41

purely statutory, is strictly construed, and it would be doing a violence to the terms of the section to hold that the word "deed" embraced a will, especially since it has been more than once held that the word "registered" is to be strictly construed, and to mean only a deed lawfully registered. See Sib ley v. Haslam, 75 Ga. 490; Kennedy v. Harden, 92 Ga. 230, 18 S. E. 542; McArthur v. Morrison, 107 Ga. 796, 34 S. E. 205. The court erred in allowing the affidavit that the will was a forgery to be filed, and in making up a special issue in reference to the genuineness of the paper. Of course, if the will is a forgery, there is a way in which an attack may be made upon it on this ground. The law does not, however, authorize an attack to be made in the manner followed in the present case. The heirs of a decedent may call upon the executor under a will, which has been proved in common form of law, to prove the same in solemn form before the court of ordinary, provided they move within the time prescribed by law. When the executor attempts to prove the will in solemn form, they may interpose their caveat, attacking the will as a forgery, or upon any other ground of attack to which it may be subject. The issue of forgery was entirely foreign to this case, and hence this judgment will not be conclusive on this question.

2. The motion for a new trial contains, besides the general grounds, numerous special assignments of error, but all of them, with possibly one exception, deal with rulings in reference to the issue of forgery which the court caused to be submitted to the jury. In the view which we take of the general grounds of the motion, it becomes necessary to refer to only one of the special assignments of error. Complaint is made that the court erred in admitting in evidence the certified copy of the will, upon the ground of an abrasion in the will, and words being written over where other words had been erased, these words being in a different ink from that in which the other portions of the will are written, and that the word "Ball," in the signature of the testatrix, was written through the seal and over it, and in a different ink from that used in the body of the will; that, where one of the witnesses signed, there was an erasure, and one witness signed in a different ink from that used by other witnesses, and that in which the body of the will appeared to have been written. These objections seem to have been urged to the admission of the certified copy, but the erasures, etc., which were the grounds of the objections, appear from the assignment of error to have been in the original will itself. If the certified copy was in due form, as it appears to be, it was no ground of objection to the admission of this certified copy that the original will was different therefrom. The original will is not evidence.

Robertson v. Hill, 127 Ga. 56 S. E. 289. A certified copy from the records of the ordinary is the only proper evidence of the contents of such a paper. If the certified copy was not correct, the remedy of the party objecting to it was to secure a correct copy of the will as it had been entered on the records, and not to produce what purported to be the original will, and thus impeach the certificate of the ordinary that the copy certified by him was correct. All these questions as to whether the paper was the last will of the alleged testatrix are matters within the jurisdiction of the court of ordinary, to be determined either when the executor offers the will for probate in solemn form, of his own motion, or when he is compelled to do so upon the application of some heir at law or other person entitled, under the law, to call for probate in solemn form. There was no error in admitting in evidence the certified copy of the will, as against the objections urged.

This brings us to the consideration of the general grounds of the motion for a new trial. The plaintiff made out a prima facie case by showing title in Mrs. Ball at the time of her death. The certified copy of the will of Mrs. Ball showed title out of her. As has been held, no attack could be made upon the validity of the will in this proceeding. The evidence, therefore, demanded a finding for the defendant on the issue of title. Such being the case, any errors that might have been committed by the judge in submitting to the jury the issue made up on the affidavit of forgery will not authorize a reversal of the judgment overruling the motion for a new trial.

3. The only other question necessary to be dealt with is the assignment of error in the cross-bill of exceptions, upon the refusal to set aside the verdict finding the deed from Mrs. Ball to E. V. Ball to be a forgery. While the defendant has succeeded in defeating the suit in the manner indicated above, and the issue of forgery as to the deed cannot be again tried in this case, still, as long as that judgment stands, the defendant will be estopped as to the validity of the deed, so far as the heirs and legal representatives of Mrs. Ball are concerned. It is therefore proper that this question should be now determined. The uncontradicted evidence on this issue established the factum of the deed. Under such circumstances the verdict was unauthorized. There was evidence tending to establish what might operate as an estoppel upon E. V. Ball; but this was not relevant to the issue, and could not be the basis upon which to rest a finding that the deed was never executed. Roberts v. Roberts, 101 Ga. 765, 29 S. E. 271. The judgment upon the cross-bill will be reversed, with direc tion that the verdict finding the deed to be forgery be set aside, and the affidavit of forgery as to the deed and the issue formed thereon be stricken.

Judgment on main bill of exceptions affirmed; on cross-bill reversed, with direc tion. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 543)

AMERICAN STANDARD JEWELRY CO
GOODMAN.

(Supreme Court of Georgia. Feb. 14, 1907.) 1. SALES-ACTION FOR PRICE-PLEADING.

Where suit was brought upon a written contract for goods sold, and the defendant filed a sworn plea denying the execution of the instrument sued on, it was permissible for him to further plead and set up what the true agreement was, the same, according to the contention of the defendant, not having been reduced to writing; and that the plaintiff had failed to comply with his obligations under said oral agreement.

2. SAME.

Such further plea, admitting that the defendant had entered into contractual relations with the plaintiff relative to the goods alleged to have been sold under the terms of the written contract, the execution of which was denied, was not demurrable on the ground that it sought to vary the terms of a valid written instrument by parol testimony, and to introduce a contract different from the one sued on.

3. APPEAL RECORD-BRIEF OF EVIDENCE.

The other questions raised by the assignments of error in the bill of exceptions depend for their proper determination upon the evidence, which this court will not consider, as the alleged brief of evidence is largely interspersed with colloquies between court and counsel, with statements of the stenographer, and with the questions of counsel, and the answers of the witnesses thereto. Further, the brief of evidence contains a large mass of documentary evidence consisting of letters and other writings, much of which, at a glance, is seen to be totally irrelevant. The mere fact that some portions of the evidence was properly reduced to narrative form does not take this brief of the evidence out of range of the rulings in the case of Price v. High, 33 S. EL 956, 108 Ga. 145, and the cases there cited.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2609.]

(Syllabus by the Court.)

Error from Superior Court, Berrien County; R. G. Mitchell, Judge.

Action by the American Standard Jewelry Company against W. B. Goodman. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Hendricks, Smith & Christian, for plaintiff in error. Alexander & Gary, for defendant in error.

BECK, J. Judgment affirmed. All the justices concur, except FISH, C. J., absent.

(127 Ga. 560) SEABOARD AIR LINE RY. v. BURNHAM. (Supreme Court of Georgia. Feb. 14, 1907.) APPEAL-REVIEW.

No error of law is complained of, and the evidence sustains the verdict.

(Syllabus by the Court.)

Error from Superior Court, Dodge County; J. H. Martin, Judge.