court on a former occasion. 119 Ga. 489, 46 S. E. 657. The excerpts from the charge complained of state sound propositions of law, and, as their supposed vice is not pointed out, no ground of error is alleged.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2968, 4358, 4668.] (Syllabus by the Court.)

Error from City Court of Americus; Chas. R. Crisp, Judge.

Action between W. O. Brackett & Co., and the Americus Grocery Company. From the judgment, W. O. Brackett & Co. brings error. Affirmed.

E. A. Hawkins, for plaintiff in error. Shipp & Sheppard, for defendant in error.

EVANS, J. 1-3. The declaration in attachment was not subject to demurrer on any of the grounds therein alleged. It was very recently decided that the Civil Code of 1895, § 4961, which requires that the petition shall set forth a cause of action in orderly and distinct paragraphs numbered consecutively, did not apply to declarations in attachment. Fincher v. Stanley Electric Mfg. Co., 127 Ga. 362, 56 S. E. 440, decided January 17th. The declaration, after reciting the suing out of an attachment by the plaintiff against the defendant, its levy, the court to which it was returnable, and the replevy of the property by the defendant, sets out the cause of action as follows: "Petitioner shows that the indebtedness arose as follows: About the month of July, 1902, petitioner bought of W. O. Brackett & Co. 10,000 bushels of Texas rust-proof oats, to be delivered in Americus, Ga., at 472 cents per bushel, and of this 4,000 bushels of oats were delivered on September 8, 1902, 1,045 bushels on September 19th, 900 bushels on October 3d, 795 bushels October 4th, 1,300 bushels October 7th -93230 [?], but instead of these oats being the Texas rust proof, they were Oklahoma or Indian Territory oats. Petitioner did not know of this fact when the oats were paid for, nor could this fact have been discovered by the use of reasonable diligence, and the facts have only been learned since the payment. Petitioner shows that the market value of the oats delivered to petitioner was from 10 to 15 cents per bushel less than the oats really bought, and by reason of these facts said W. O. Brackett & Co. have injured and damaged your petitioner in the sum of $1,121.50." The contract of sale and its breach are alleged with sufficient certainty. The declaration in attachment begins with the assertion that defendants "are indebted to petitioner in the sum of $1,000, as will more fully appear hereinafter." The amount claimed in the affidavit was $1,000, the same as that contained in the declaration. Nor did the mere fact that the aggregate of the particular items of damage specified elsewhere in the declaration exceed $1,000 render the declaration bad as claiming more than the amount sworn to in the attachment affidavit.

Casey & Hedges Mfg. Co. v. Dalton Ice Co., 94 Ga. 407, 20 S. E. 333.

4. The oats were sold to the plaintiff by the defendants through their broker. All negotiations had with the broker by the plaintiff were verbal, but the offer to sell which the defendants authorized their broker to make was contained in telegrams passing between their broker and themselves. As a witness for the plaintiff the broker was permitted to testify: "The understanding between me and the plaintiff of the meaning of the term "Texas red rust-proof seed oats,' was Texas raised oats; that did not include oats raised in Oklahoma. There is no such understanding known to the trade that I ever heard of that the term "Texas red rust-proof seed oats' should cover the Oklahoma." The testimony was objected to as "illegal and not binding on defendants, and because the sale was in writing." A broker is a special agent, and derives his power and authority to bind his principal from instructions given him by the latter. Clark v. Cumming, 77 Ga. 64, 4 Am. St. Rep. 72. He cannot exceed his powers in his effort to bind his principal. The testimony which was allowed does not have the effect of either enlarging the powers of the special agent or of proving a written contract by parol. There was no dispute that the contract of sale comprehended "Texas red rust-proof seed oats." It was competent for the plaintiff to show that oats of this variety have a technical trade meaning; that the contract between it and the defendant's broker was made with reference to their understanding of the meaning that "Texas red rust-proof oats" included only Texas raised oats; and that no contrary understanding of this trade term was known to the trade. There was no error in allowing this testimony.

5. Complaint is made that the court erred in repelling from the evidence this letter from D. M. Borum to defendants: "Your wire this date received. Your case will be tried during the city court term which begins first Monday in May. I have had a talk with the Americus Grocery Co.'s attorneys, and believe the matter can be arbitrated, which will be the cheapest for you, provided you think there is any merit in the claim of the Americus Grocery Co. I think their claim very unjust, but do not know what evidence they are going to produce when the trial comes off, as they claim to have all they want, so they say. If you wish to arbitrate, if you desire, will act as your representative in the matter and will try to get the best man on our side that can be had. Will be pleased to hear from you." In offering this letter counsel for defendant insisted that it was admissible as contradicting the witness Borum, who testified for plaintiff. The only possible theory upon which it could have been admitted was that it amounted to a contradictory statement made out of court relative to the testimony of the witness and

the case on trial. As the letter did not relate to a matter material to the issue, it was properly repelled.

6. Error is alleged in admitting, over objection that it was a copy and not called for by notice to produce, a letter from the plaintiff to the defendant dated September 18, 1902, as follows: "We wish you would write us a letter, in just as few words as possible, telling us that the oats that you are shipping us are strictly first class Texas Oats guarantied; as there are so many oats being offered from the Oklahoma and Indian Territories at so much cheaper prices, we want to have your letter printed and sent out in our envelopes with bills. We will appreciate it very much, as it is the only way to come out whole on our contract." Inasmuch as it was admitted by the defendants that the oats actually delivered were not grown in the state of Texas, it would seem that the testimony was immaterial, and not of such a prejudicial character as would afford a reason for the grant of a new trial.

7. Complaint is made of a certain charge on the measure of damages, and also of the refusal of the court to give certain instructions requested on this subject. The charge as given was in exact compliance with the rule laid down when this case was before the court on a former occasion. 119 Ga. 489, 46 S. E. 657. The trial judge was in duty bound to give this rule as the measure of damages, and, if there was any possible conflict between the rule as given and the request to charge, the request was properly refused. If there is no substantial difference between the two, the defendant was not hurt.

No specific error is pointed out in the excerpts from the charge made the fourteenth and fifteenth grounds of the motion for a new trial. As they contain correct propositions of law, and as the supposed vice is not indicated in the assignment of error, no question is presented for adjudication.

The assignments of error other than those dealt with above are covered by the rulings in this case when it was here before. The evidence was sufficient to support the verdict; and, no error of law appearing, the judgment is affirmed. All the Justices concur, except FISH, C. J., absent on account of sickness.

2. SAME-Grounds.

A defendant may resist the levy of an execution by affidavit of illegality by showing an agreement between the plaintiff and himself, entered into contemporaneously with or prior to the rendition of the judgment, whereby it was stipulated, upon a sufficient consideration, that the judgment taken might be subsequently discharged upon performance of certain acts by the defendant, and by showing that the defendant has performed those acts, since the judgment, conformably to the terms of the agree ment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § 485.]

3. SAME.

The defense set up in the illegality was that the plaintiff, an insurance company, instituted a suit against A. as principal, and the affiant as security, and that at the trial term the plaintiff and the affiant agreed upon a settlement of the case, by the terms of which the affiant was to withdraw his defense to the suit, and the judgment was to be taken for the amount claimed by the plaintiff in the suit against A. as principal and the affiant as security, and the execution to be issued on the judgment was to be transferred to the affiant upon his executing to the plaintiff a note for a named amount, due October 1st thereafter, and giving to the plaintiff an application for a policy of insurance in the sum of $3,000 on the life of the affiant, upon which application the plaintiff promised to issue a policy of insurance; that upon this agreement the affiant abandoned his defense, and judgment was taken in conformity with the agreement. Held, that the defense thus attempted to be set up was fatally defective, in that it was not alleged that the affiant had complied with the terms of the settlement.

4. SAME.

This defect was not remedied by an amendment alleging that the plea filed by affiant in the original case averred a good and valid defense, and that the note contracted to be given was actually made and delivered to the plaintiff, and accepted by it in accordance with the agreement. The affiant should have further alleged his compliance with the terms of the agreement relative to making the application for the policy of insurance, which he bound himself to do.

(Syllabus by the Court.)

Error from City Court of Valdosta; 0. M. Smith, Judge.

Action by the Security Mutual Life Insurance Company against W. F. Monroe. From an order dismissing an affidavit of illegality of an execution, defendant brings error. Affirmed.

G. A. Whitaker and Wilcox & Patterson, for plaintiff in error. Woodward & Smith and Mayson & Hill, for defendant in error.

EVANS, J. The nature and scope of the grounds of the affidavit of illegality are so fully embraced in the headnotes that a more elaborate statement of the facts is unnecessary. The defendant does not attack the validity of the judgment. The object of this illegality is not to be delivered from an unjust judgment by setting it aside, but to resist the execution on account of the alleged injustice of the plaintiff who seeks to enforce it. A defendant may resist an execution by successfully showing that he had a good defense to the suit, which he was induced to

abandon because of an agreement with the plaintiff that the judgment to be rendered was to be discharged against him upon his doing certain acts subsequent to the judgment, and that he had performed such acts conformably with his agreement. "An affidavit of illegality, under our system, if the facts are set forth, may bring up any good reason why it will be illegal to raise the money." Shorter v. Moore, 41 Ga. 691, 695. The withdrawal of his defense is sufficient consideration to support the contract that the judgment is not to be enforced against him upon his compliance with the terms of the agreement. The agreement does not contemplate any attack on the judgment, but is a contract to discharge it by performing certain acts subsequent to the judgment. It would be inequitable and wrong to permit a plaintiff to induce a defendant to withdraw a valid defense upon the plaintiff's consent that the judgment might be subsequently discharged in a particular way and, then, upon the defendant's doing or offering to do the acts agreed on to discharge the judgment, to repudiate his agreement. Such a defense is available by affidavit of illegality. Wimberly v. Adams, 51 Ga. 424. But the defect in the affidavit of illegality under consideration is that affiant fails to allege compliance on his part either in the original affidavit or in the amendment which was rejected by the court. Even if the court had allowed the amendment indicated in the last headnote, as there pointed out the affidavit would have been still defective. Accordingly there was no error in dismissing the affidavit on demurrer.

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

Although the instructions of the court to the jury may state the law correctly, in the abstract, yet, if they are not authorized by the evidence in the case, they are erroneous, and, if it is not apparent that the jury could not have been misled by them are cause for a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596-612.]

2. PARENT AND CHILD-SERVICES-PAYMENTTO WHOM MADE.

Where a minor son, without his father's consent, makes a contract for his services with a third person, and the father knows that he is in the employment of such person, and neither makes any objection nor demands pay for his child's services from such employer; there is an implied assent by the father than the son shall receive his earnings in such employment. [Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Parent and Child, §§ 70-73.] 3. SAME AMOUNT OF RECOVERY.

Where a father sues one who, without his consent, has employed his minor son, to recover the value of his son's services while employed by the defendant, basing his action upon

A corporation which lawfully acquires all the property of a partnership does not thereby become responsible for the partnership's debts. [Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 100.]

(Syllabus by the Court.)

Error from City Court of Cartersville; A. M. Foute, Judge.

Action by A. Culberson against the Alabama Construction Company. From a judgment in favor of defendant, plaintiff brings error. Reversed.

Culberson, a resident of the state of Alabama, brought a suit, based on an attachment, in Bartow county, Ga., against the Alabama Construction Company, an Alabama corporation, doing business in that county, for the recovery of $450, alleged to be due him by the defendant for the services of his minor son. The petition, based upon the attachment, alleged that the defendant on July 1, 1903, employed Kirkland Culberson, the plaintiff's son, then under the age of 16 years, as a day laborer; that plaintiff protested against the employment of his minor son by defendant, and used repeated efforts to induce his child to return to his home, but that the officers and agents of the defendant company induced his child to remain in its employment and work for it, and that the boy did work for defendant from July 1, 1903, until March 1, 1905, for which the defendant was indebted to plaintiff $450, "the wages of his said minor child for said work, plaintiff alleging said services to be worth $1 per day." The defendant denied all the allegations of the petition, except the allegation as to the suing out of the attachment and the

allegation that defendant had refused to pay plaintiff the sum sued for, or any other sum. Upon the trial of the case it appeared, from the evidence, that the plaintiff lived in Anniston, Ala., and that the services of his son, for which he sued the defendant, had been performed in connection with railroad construction work, at and near various other places in Alabama and Cartersville, Ga. It also appeared that this railroad work was first carried on, and the plaintiff's son first employed thereon, by a partnership, consisting of D. B. Lacy and Mrs. Susan E. Jones, doing business under the firm name of the "Alabama Construction Company," and that later this partnership was succeeded by a corporation, incorporated in the state of Alabama, under the same name, upon the application of D. B. Lacy and three other persons, not including Mrs. Jones, which cor

EVANS, J. (after stating the facts). 1. Complaint was made in the motion for a new trial that the court erred in charging the jury that a father's parental power over his minor child is lost, by voluntary contract releasing his right to a third person, by consent to the adoption of the child by a third person, by his failure to provide necessaries for his child, or his abandonment of his family, by his consent to the child's receiving the proceeds of his own labor, such consent being revocable at any time, and by cruel treatment of the child, and that it was for the jury to determine whether the plaintiff, in any one or more of these ways, had lost control of his boy. The assignment of error was that this instruction was erroneous, because "the issues before the jury, under the evidence, was whether or not the father had ever consented that his minor child [should] receive the proceeds of his own la bor, and whether such consent had ever been revoked by the father; and there was neither contention nor evidence that the father had lost his parental control in any of the other ways mentioned by the court. The trial judge specifically approved this ground of the motion, and certified that the facts stated therein were true. So we must take the statement that there was no contention that the father had lost his parental power in any of the ways mentioned by the court, except by his consent to his son's receiving the proceeds of his own labor, as being true. It is evident from the excerpt from the charge set out in the motion for a new trial that the judge, in instructing the jury as to how parental power may be lost, read to them the provisions contained in the numbered paragraphs of section 2502 of the Civil Code of 1895 upon the subject, merely omitting paragraph 5 in reference to the loss of parental control by consent to the marriage of a minor child. He not only did this, however, but he instructed the jury that it was for them to determine "if this father, in any one of these ways, or any more of them, lost control of his boy." So he was not merely reading to the jury the provisions from this section of the Code as to the loss of parental power, in order that they might see that one of the ways in which such power may be lost is by the father's consent for his minor child to receive the proceeds of his own labor, but also in order that they might consider whether this father had lost control of his minor son in any one or more of the other ways mentioned by the court.

This construction of this portion of the charge is further shown to be correct by other excerpts from the charge upon which error was assigned in the motion for a new trial, wherein the jury were instructed that if they found that the plaintiff had by voluntary contract released his parental right to a third person, or failed to provide necessaries for his child, or cruelly treated the child, or had "consented to his child being adopted by the defendant,” he could not recover, and the jury must look to the evidence to see whether he had done either of these things. As there was neither contention nor evidence as to the loss of the parental power in any way save by consent to the son's receiving the proceeds of his own labor, the court erred in these instructions. It has been so long and so repeatedly held by this court that a charge abstractly correct, but not warranted by the evidence, is erroneous, that we deem it unnecessary to cite any of the great number of cases to this effect. It not being apparent from the evidence that the jury could not have been misled by these repeated erroneous instructions of the court, a new trial should have been granted because of their existence.

2. Another assignment of error in the motion was that the court erred in instructing the jury that if they believed that the plaintiff's minor son was in the employment of the defendant company "with the knowledge of the father, and the father did not complain nor demand payment for his services, such failure would be in effect a ratification of such employment, and the father could not recover." The error assigned was that this instruction "was inapplicable to the facts of the case, as well as an erroneous statement of the law." It was not inapplicable to the evidence in the case, nor do we think it was an erroneous statement of the law. While the expression "ratification of such employment" may not have been strictly accurate in the connection in which it was used, the evident meaning was that, under the circumstances stated by the court, the father would have impliedly assented to the employment of his son by the defendant. Section 2502 of the Civil Code of 1895, as we have seen, expressly provides that the parental power of the father, including his right to the services of his minor child and the proceeds of his labor, may be lost by his consent to the child's receiving the proceeds of his own labor. The charge of the court, in effect, was that such consent of the father would be implied if he knew that his minor son had entered the employment of another, and with such knowledge, did not forbid such employment, nor demand payment for the services of his son. This charge of the court was in accordance with the rulings in Whiting v. Earle and Trustee, 3 Pick. (Mass.) 202, 15 Am. Dec. 207; Smith v. Smith, 30 Conn. 111; Armstrong v. McDonald, 10 Barb.

(N. Y.) 300; Gale v. Parrott, 1 N. H. 28. In the case first cited the court said: "We go so far as to say that when a minor son makes a contract for his services on his own account, and the father knows it, and makes no objection, there is an implied assent that the son shall receive his earnings." In the Connecticut Case: "The plaintiff's minor son agreed with the defendant to work for him for the season, at certain monthly wages, to be paid to the minor. The plaintiff, who lived near by, knew of the agreement, and, that his son was working for the defendant, but made no objection and gave the defendant no notice that he should demand his wages. After the work had been done, and the defendant had paid the son, the plaintiff demanded his wages." It was held "that he was estopped from claiming them." In the opinion, Sandford, J., said: "The plaintiff's conduct was evidence of his assent to that contract, and its performance as well by the defendant as the son, and operates against the plaintiff as an estoppel upon his present claim. Knowing of the contract and having an opportunity to prohibit and prevent its execution, he remained silent, and thus induced the defendant very justly to infer his assent and approbation. If plaintiff can recover for these services, his conduct will have operated as a delusion and a fraud upon the defendant; but he is not entitled to such recovery." In the New York case it was held: "When a minor makes a contract for his services, on his own account, and the father knows of it, and makes no objection, it seems that there is an implied assent that the son shall have his earnings.' The court cited for this Whiting v. Earle and Trustee, supra. In the New Hampshire case the court held that the parent's right to payment for his minor child's services "may be waived by acts evincing an assent to the minor's receiving payment himself." Our own case of Wolf v. East Tenn. Ry. Co., 88 Ga. 210, 14 S. E. 199, is directly in line with these authorities. There a minor, by his father as his next friend, sued the railway company for damages arising from personal injuries received while in its employment, and the father sued the company for the loss of the services of his son, resulting from such injuries. The son testified that his father did not consent to his employment on the railroad, but knew of it and did not forbid it. It was held that a "nonsuit was properly granted as to the action in favor of the employé's father; his implied consent to the employment of his minor son by the railway company being fairly deducible from the facts in evidence, and there being no proper foundation for an Inference to the contrary."

3. The court charged the jury as follows: "Until majority the child remains under the control of the father, who is entitled to his services, and the proceeds of his labor. I charge you that what is meant by the word 'proceeds' in this section is the proceeds of

his labor reduced by the necessary expenses of maintenance. If you find from the evidence that the services of Kirkland Culberson were not worth more to the defendant company than his board, lodging, and clothing, then the plaintiff could not recover. The plaintiff could require the defendant to pay all of Kirkland Culberson's expenses, and then pay him for the gross value of his son's work, without crediting this amount with the amount expended by the defendant for the necessary expenses of the minor." Error was assigned upon this charge, as not being pertinent to the issues made by the pleadings and evidence, and as being an erroneous statement of the law. The evidence showed that a part of the wages of the plaintiff's son were paid to him in necessaries furnished by his employer. As a mere abstract statement of the law, this instruction of the court was not exactly accurate, for a father maintaining his minor child at home, or supplying him with necessaries elsewhere, would be entitled to the proceeds of his labor, unreduced by the necessary expenses of his maintenance. The material question, however, is whether the charge of the court, as applied to the case on trial, was an erroneous statement of the law. The plaintiff did not sue to recover damages for the loss of the services of his son, but he waived all consideration of tort and sued upon an implied assumpsit; that is, upon an implied promise of the defendant to pay him the value of his son's services. When a promise is implied from the existence of certain circumstances, in order to ascertain the promise implied, all of the pertinent circumstances must be taken into consideration, and not simply those which are favorable to one side only. Accepting the theory of an implied promise, the circumstance, not denied, that the defendant supported the plaintiff's son while he was engaged in its service, was material in ascertaining what the implied promise of the defendant to the father was; for it could not be reasonably held that the defendant took the plaintiff's son into its employment, supplied him with necessaries while in such employment, and yet impliedly agreed to pay the plaintiff the entire abstract value of his son's services, without deducting therefrom the reasonable value of the necessaries furnished. In Adams v. Woonsocket Company, 11 Metc. (Mass) 327, the plaintiff whose minor daughter was employed by the defendant company, at a distance of many miles from his residence, forbade the company to employ her any further, and gave notice that, if it did, he should demand $3.50 per week for her time and labor, without any deduction on any account whatever, and also directed the company not to allow or pay her anything, either goods or money, on account of her labor. It was held that "in an action of assumpsit by the father against the company, to recover pay for his daughter's labor subsequently done for them, he was entitled