to recover only so much as her labor was reasonably worth, deducting the price of board provided for her by them, without any deduction for clothing which they provided for her." In the opinion, Dewey, J., after holding that the notice which the plaintiff gave the defendant company was wholly ineffectual to charge the defendant in any particular sum, said: "There was no special contract, therefore, as to the amount of wages; and in an action of assumpsit the plaintiff must rely upon the implied contract of the defendants to pay what the daughter's services were reasonably worth. If the defendants furnished her board, the sum to be recovered will be the value of the services of a person thus furnished with board by the employer. This seems to be reasonable, as the father could not have furnished board for her in his own family while she was thus in the employment of the defendants; he living at a distance from her. And it must be the proper rule in an action where the plaintiff waives the tort and sues upon an implied assumpsit. The claim of the defendants for articles for clothing for the minor, we think, stands upon a different footing. The father might well object to the expenditure on this account of any money for clothing for his daughter. No deduction should be made on that account." The distinction which the court here made between board and necessary clothing seems to have been based upon the idea that the father could not have furnished his daughter with board in his own family while she was in the employment of the defendant, but that he could have supplied her with suitable clothing while thus employed. It may be true that the father could have supplied his daughter with necessary clothing while she was in the service of the defendant, but, if he did not do so, and the defendants did, it seems to us that the clothing and the board would stand upon the same footing; for, as we have said, when implying a contract from circumstances, all the pertinent circumstances must be taken into consideration. And in a case of this character it would seem that the implied contract of the employer was to pay the father the reasonable value of the services of his minor child when furnished with necessary board and clothing by the employer.

In a later decision by the same court, in a case where a father sued for the earnings of his minor son while in the employment of the defendants on board their whaling schooner, upon an implied promise of the defendants to the plaintiffs, it was held: "In an action of contract by a father for the earnings of his minor son, employed with his consent, the measure of damages is, not what the son would have earned for the father during the time, but what he in fact earned in the service of the employer. The father in such a case can recover only what the son might have recovered had he been of age and

competent to contract." Weeks v. Holmes, 12 Cush. (Mass.) 215. It appeared, from an agreed statement of facts in the case, that it was a well-established and universal usage in the whaling business "for seaman engaged therein to sail upon a lay, or to receive in place of wages for their time and services a certain relative proportion of the proceeds of the voyage, such as their relative experience and skill may entitle them to, or such lay or proportion as they may agree upon beforehand"; that "the reasonable, usual, and only lay received by" green hands, such as the plaintiff's son, "was a onehundredth lay, or a one-hundredth part of the proceeds of the oil taken upon the voyage, after deducting the proportion of the expenses of fitting the vessel, and all advances made each one on account of the voyage." Chief Justice Shaw, delivering the opinion, said: "This is an action of contract on the implied promise by the defendants to the plaintiff, a promise implied from his relation of father entitled to the earnings of his son. Nothing can be claimed in this action for any supposed wrong in seducing the plaintiff's son or employing him without his consent. After the service was done, the father steps in with his legal claim, denies the authority of his son to receive his own earnings, and, in effect, says to the defendants 'that which you would have been bound legally and equitably to pay him, had he been of age, or otherwise competent to contract, I require you to pay me.' To this extent his claim is recognized, and no further. In determining what that allowance shall be, the question is, not what the son would have earned for the plaintiff, but what the son earned of the defendants in their service. Quantum meruit? In considering what he did in fact earn, it appears to us that the universal custom of the business to pay by a lay or share, instead of monthly or other wages, is competent and proper. Upon the facts, the court are of opinion that the plaintiff is entitled to a fair share or lay; and this, we think, must be fixed as a one-hundredth part, not because the minor agreed to it, but because it is shown to be a reasonable and fair lay, and therefore a just measure of the value of the services sued for. From this is to be deducted the advances of the defendants, for outfit and necessaries on the voyage, warranted by the like universal usage of the business; and, as these exceed the lay, there are no net earnings to be recovered." It will be observed that the court, in implying the contract between the plaintiff and the employers of his minor son, took into consideration all the circumstances under which the minor was employed, the usages of the particular business, the advances made to the minor for necessaries, etc., and held that from the gross amount of the minor's earnings there should be deducted the advances of the defendants for his proportion of the

expenses of the outfit and for necessaries furnished to him by them. So, notwithstanding the use which the court made of the universal custom of the business in which the plaintiff's son was employed, we think it clear that, when the underlying principle of the case is followed, a father suing, upon an implied contract, for the falue of his minor son's services to the defendant, cannot recover the gross value of such services when the defendant has supported the minor while in his employment, but can only recover what the minor's services were reasonably worth when employed and supported by the defendant; for if, as appears to have been held by the court, a father suing upon such an implied contract can recover only what the son could have recovered, if he, being of full age when the services were rendered, had performed those servics under an implied contract, then it must necessarily follow that the reasonable value of the maintenance furnished to the son by his employer must be taken into consideration when determining the amount dae by the employer for the services rendered.

In Sherlock v. Kimmel!, 75 Mo. 77, it was held: "If a minor sou hire himself out without the knowledge of his father, the father may either adopt the contract and claim whatever is due under it, or he may repudiate it and claim the value of his son's services. In the latter event, if it appears that the employer has permitted the son to use part of his time for his own purposes, the measure of the recovery will be the value of his entire time, less the value of the privilege so accorded to him." There the plaintiff's son, while in the employment of the defendant, was allowed to devote part of his time to giving music lessons, for which he received pay; and the court rightly took this circumstance into consideration in determining what the implied contract with the father was. In Huntoon v. Hazelton, 20 N. H. 388, it was held that "if a minor son abscond from his father's house, and enter the services of one who for his labor furnishes the infant a reasonable support, the parent cannot recover the son's wages, without deducting the amount of expense for such support." That ruling appears to have been based upon the idea that, although a minor son who absconds from his father's house may not "carry with him the credit of the parent to the extent of procuring reasonable supplies, common humanity would require that he should be suffered to apply his own industry for the relief of his necessities," as "without that privilege the minor would starve, and the law, which is really designed for the protection of infancy, would visit such fault or error as is here supposed with the penalty of the most debased form of vagrancy." In Dunn v. Altman, 50 Mo. App. 231, where the plaintiff, who sued for the value of his minor 56 S.E.-49

son's services, claimed that the boy was employed by the defendant without his consent, and, over his protest, the court said: "It seems to be conceded by the plaintiff in argument that, even upon his own theory, the defendant is entitled, to the extent to which he may have supplied the boy with necessaries, to an abatement of the amount due by the defendant to the plaintiff"; and cited Huntoon v. Hazelton, supra. But the court held that where, in such a case, the defendant "seeks to reduce the amount of recovery on the ground that he supplied the minor with necessaries, the burden is on him to show the extent of the necessaries supplied by him; and evidence that he paid wages to the minor, allowing the minor to apply the same as he wished, will not suffice, though it appears that the same were partially used by the minor in the purchase of necessaries." It follows from what we have said that, in our opinion, the charge of the court which we have just been considering afforded no cause for a new trial.

4. The court charged the jury that they could not find against the defendant company "for any services the plaintiff's son [might] have rendered the Alabama Construction Company when it was a partnership, or which he might have rendered to Lacy & Jones, a partnership, or might have rendered to D. B. Lacy personally"; that the suit was proceeding against the defendant corporation, and the jury were to ascertain from the evidence what services had been rendered to the corporation. Error was assigned upon this instruction upon the ground that it appeared from the evidence that the corporation had absorbed all the assets of the partnership, and "was therefore liable for the debt created by [plaintiff's son's] labor; the benefit of said labor having been received by the corporation." There was nothing to show that there had been any assumption by the corporation of debts of the partnership, or that it had acquired the partnership's property in fraud of creditors of the firm. A corporation which lawfully acquires the prop erty of a partnership does not thereby become liable for the partnership's debts. Partners own the firm property just as individuals own their property, and, "as the ordinary creditors of an individual have no lien on his property, and cannot prevent him from disposing of it as he pleases, so the ordinary creditors of a firm have no lien on the property of the firm so as to be able to prevent it from parting with that property to whomsoever it chooses." 1 Lindley on Partnership (Rapalje's Am. Ed.) 565, 566: 22 Am. & Eng. Enc. L. 186. To the same effect, see Veal v. Keely Co., 86 Ga. 130, 12 S. E. 297; Ellison v. Lucas, 87 Ga. 223, 13 S. E. 445, 27 Am. St. Rep. 242.

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

(127 Ga. 593)

CENTRAL OF GEORGIA RY. CO. v.
HUGHES.

(Supreme Court of Georgia. Feb. 15, 1907.) 1. RAILROADS-KILLING STOCK-EVIDENCE.

It being a material matter of inquiry as to what was the condition of the headlight of the locomotive of the defendant's train at the time it was alleged to have struck and killed the plaintiff's horse, to recover the value of which this suit was brought, evidence tending to show the condition of the light at a point four or five miles distant from the place at which the animal was killed was not entirely irrelevant.

2. SAME-INSTRUCTIONS.

There being evidence to authorize the jury to find that the plaintiff's horse was killed by the running of the defendant's locomotive and train as alleged, it was not error for the court to charge the jury as follows: "If the defendant does show by the testimony in the case that they have exercised all ordinary and reasonable care and diligence, and notwithstanding the exercise of that ordinary care and diligence, ordinary, and reasonable care and diligence, they did not and could not have avoided the injury, then, although the plaintiff's horse was killed by the company, the plaintiff would not be entitled to recover."

3. TRIAL INSTRUCTIONS.

This being a suit for the recovery of damages, and the evidence upon the question of the amount that the jury should find for the plaintiff, in the event their verdict was in his favor, not being such as to limit them absolutely to any one given sum, it was the duty of the court to charge the jury the law as to the measure of damages; and his failure to do so was error. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 484.]

4. APPEAL-REVIEW.

Except as above ruled, no other reversible error is shown to have been committed in the trial.

(Syllabus by the Court.)

Error from Superior Court, Houston County; W. H. Felton, Jr., Judge.

Action by J. H. Hughes against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Hall & Wimberly, for plaintiff in error. Joseph H. Hall and Warren Roberts, for defendant in error.

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

(127 Ga. 557)

THOMPSON v. LANFAIR et al. (Supreme Court of Georgia. Feb. 14, 1907.) 1. DEEDS-FAILURE OF CONSIDERATION-CANCELLATION-RIGHT OF ACTION-BREACH OF CONTRACT.

The court below erred in overruling the motion for a new trial, as the verdict in favor of the plaintiff was without evidence to support it. 2. NEW TRIAL-GROUNDS-ERRORS-NECESSITY OF OBJECTION.

Grounds of a motion for a new trial which complain of the admission of testimony are without merit when they fail to show that objection was made at the time of the intro

This being an equitable action to have a certain deed delivered up and canceled, on the ground that the execution of the same was procured by fraud, it did not abate upon the death of the grantor in the deed, who was the original plaintiff in the action when brought. (Syllabus by the Court.)

Error from Superior Court, Pulaski County; W. H. Felton, Jr., Judge.

Action by Mrs. Nancy Lanfair against Morgan Thompson, administrator. On the death of plaintiff, William A. Lanfair and others were substituted as parties plaintiff. From a judgment in favor of plaintiffs, defendant brings error. Reversed.

This case was previously before this court, and a statement of the material allegations in the pleadings is in 112 Ga. 487, 37 S. E. 717. A subsequent trial resulted in a verdict against the defendant. He assigns as error the overruling of his motion for a new trial.

H. E. Coates, for plaintiffs in error. W. L. & Warren Grice, for defendant in error.

BECK, J. 1. In this action Mrs. Nancy Lanfair sought to have a deed which she had executed to James Lanfair declared null and void, and to have the same delivered up and canceled. By that deed certain realty and personalty were conveyed to her son, the said James Lanfair; the conveyance purporting to be "for and in consideration of the support and maintenance of the grantor during her natural life," and the remainder of the instrument being in the usual form of a warranty deed conveying realty in fee simple. The alleged value of the property conveyed was $750. Before the trial the plaintiff died, and W. A. Lanfair, Sarah Lanfair, Emma Phillips, Ira Lanfair, Annie Marchman, Rosa Marchman, Carrie Marchman, Nellie Lanfair, and Ilo Lanfair, her heirs at law, were made parties plaintiff, and the case proceeded in their name. Upon the trial of the case the jury returned a verdict in favor of the plaintiffs, and thereupon a decree was taken and entered up, wherein it was "ordered and adjudged that said deed be canceled and delivered up by the administrator of James Lanfair, and declared of no effect so far as it relates to the realty therein described"; counsel for petitioners having stated to the court that they did not ask for "a rescission of the personalty." defendant moved for a new trial, and, the motion having been overruled, he excepted.

The

After a careful reading and consideration of the testimony in the case, we are of the opinion that the court should have granted the motion for a new trial, upon the ground that the verdict was without evidence to sup

port it.

The

Even if the defendant's intestate had failed to furnish the grantor the "support and maintenance during her natural life," this would not have been sufficient ground for holding the deed in question to be null and void, and ordering the same to be canceled. In the case of Brand v. Power, 110 Ga. 522, 36 S. E. 53, it was held that an absolute deed of conveyance would not, at the instance of the grantor, be canceled merely because of a breach by the grantee of a promise made by him in consideration of which the deed was executed. In that case it was said by presiding Justice Lumpkin, who delivered the opinion, that "if we treat the petition as sufficiently alleging that the undertaking of the defendant to provide a support for his mother was the sole consideration of the deed, which is by no means clear, his failure to do as he promised amounts to nothing more than a mere breach of contract, for which the plaintiff has an adequate remedy by a proper action for damages. deed passed the title to him without condition or qualification, as it contained no language making his title in any way dependent upon compliance with his contract to support his mother." And the case of Lindsey v. Lindsey, 62 Ga. 546, is to the same effect. It is not alleged that the estate of the grantee is insolvent; and it is therefore unnecessary for us to rule what would have been the possible equitable remedies in case insolvency had been alleged, so as to show the inadequacy of a proceeding at law for the breach of the grantee's obligation to support and maintain the grantor. The trial judge very properly, by his charge to the jury, made the plaintiff's right to recover turn upon the question as to "whether or not any fraud was perpetrated by James Lanfair in procuring this deed"; and he eliminated the question as to whether he had violated "his contract to support his mother, except in so far as that fact and the evidence in regard thereto might assist the jury in determining whether fraud was practiced upon the mother in procuring the conveyance in controversy." The charge might well have still further restricted the jury's field of inquiry. In the eleventh paragraph of the petition the plaintiff distinctly states that she "does not allege that her said son intended at that time [at the time of procuring the deed] to violate his agreement to support and maintain her during her natural life, but the fact is he did not support and maintain her before or after obtaining said deed." Giving to this last allegation its full force and effect, the plaintiff's right to have a verdict in her favor depended entirely upon whether or not there was evidence to support the remaining allegations in the petition, setting up that the defendant's intestate had procured the deed under such circumstances and in such manner as would render it null and void. And those allegations are contained in the two paragraphs which are here set out in full: (a) "Petition

er shows that on sald 23d day of January, 1896, the said James J. Lanfair, in the absence of petitioner's other children and without their knowledge or consent, persuaded and induced petitioner, in her feeble and dependent condition, to execute and deliver to him a deed to the house and lot aforesaid." (b) "Petitioner shows that in obtaining this deed her said son took advantage of her confidence in him, and that she was not capable of understanding its terms and conditions and effect, and that, knowing her condition, he persuaded her to sign it without giving her an opportunity to consult with her other children or friends." And the record discloses that there was no evidence to support these averments. In her (plaintiff's) evidence which was admitted without objection, beyond saying that her son James "insisted" upon her making the deed, there is no evidence that in the absence of petitioner's other children, and without their knowledge and consent, the grantee in the deed "persuaded and induced" petitioner to execute the deed now sought to be set aside, nor that her said son took any advantage of the grantor whatever. She distinctly states, in her answers to her interrogatories, that "James promised to take care of me so long as I lived, if I made him the deed. Upon this consideration I made the deed." Considering this evidence, and the allegations in the petition which depend entirely for support upon that evidence, we perceive that they must fall. The superstructure is entirely too heavy for the base upon which it was erected, undermined as that was when, by the plaintiff's own admission, the main props were removed in eliminating all the elements of fraudulent intent upon the part of the grantee at the time of the alleged promise to his mother.

2. In the motion it is also complained that the court erred "in allowing, over objection of the defendant's counsel, a written disclaimer of William and Ira Lanfair, two plaintiffs, to be introduced in evidence." But movant does not state in this ground of his motion what objections were made or urged at the time of the admission of said disclaimers in evidence, and consequently the ground is without merit.

3. The court correctly held that the action did not abate upon the death of the original plaintiff, the grantor in the deed in controversy.

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

binding upon the purchaser, but makes express provision that it is given subject to approval by the person to whom addressed, such order does not become binding as a contract until approved and accepted by the contemplated vendor.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 44-48.]

2. SAME-MODIFICATION OF ORDER.

In such case, if the written order, which specifies upon its face a list of articles of stated prices, and which contain certain stipulations intended to be binding upon both parties, be signed by the contemplating purchaser and delivered to the salesman of the contemplated vendor upon the express understanding that only a part of the goods specified in the order are to be purchased, and the salesman agrees to so alter the written order as to eliminate all of the articles except the part agreed to be purchased, and if the agent, at the time of sending the order on for approval, notifies his principal that the written order is to be so modified, and the principal approves the order for the less amount only, the contract would be ding only for the less amount. It was therefore erroneous for the court to strike a plea of the defendant to a suit for the purchase price of the goods, which plea set forth that the vendors had shipped goods to the extent of the larger amount, and that he refused to accept, on account of facts substantially as above set forth.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, 88 39-48.1

3. SAME-ACTION FOR PRICE EVIDENCE.

Upon the defense above indicated, the letter and testimony referred to in the fourth and fifth grounds of the amended motion for new trial were admissible in evidence.

4. EVIDENCE-ADMISSIONS STATEMENTS BY

AGENT.

Until proof of agency is made, the sayings of an alleged agent are inadmissible. There was no foundation laid for the introduction of the evidence referred to in the sixth ground of the amended motion for new trial, and the court's ruling in that respect was not erroneous.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 1006.]

(Syllabus by the Court.)

Error from City Court of Douglas; Levi O'Steen, Judge.

Action by W. F. Maine & Co. against A. T. Howell, agent, and others. From a judgment in favor of plaintiff, defendants bring error. Reversed.

The suit was upon an open account for the price of certain jewelry, amounting to $180, furnished in pursuance of a written order, signed by the defendant, and addressed to the plaintiffs at Iowa City, Iowa, containing, among other stipulations, the following: This order is subject to approval at Iowa City, Iowa." At the appearance term the defendant filed an answer, denying the allegations of the petition, but set up that the defendant had given an order for a less quan. tity of goods, and that, instead of filling that order, a larger order of goods was shipped, and, upon its arrival at the place of destina. tion, the defendant refused to receive them from the common carrier, on account of the variance above stated. At the next term of the court the defendant offered to amend his plea as follows: (1) That at the time

A. T. Howell, agent, signed the sald order and contract of the plaintiffs, L. Brown, Jr., salesman of the plaintiffs, who solicited the order from these defendants, as well as said A. T. Howell, agent, were each in a very great hurry, and said Howell only agreed and consented to sign said order upon the representations on the part of the said agent and salesman that he would mark out $100 worth of the most costly jewelry, and that he would only report to the W. F. Maine & Co. an $80 order; (2) that the said salesman and said Howell went over the list rapidly, and Howell told the said salesman to leave out specified articles, and the salesman then and there, before the order was signed, agreed and promised to leave out enough of the class of articles agreed upon to amount to $100, and to only report an order for $80; (3) that said salesman reported to the plaintiffs, W. F. Maine & Co., that although A. T. Howell, agent, had signed a $180 order, he had agreed to ship to him only an $80 assortment, and that under the contract made by him, L Brown, Jr., with this defendant, only an order for an $80 assortment was reported for approval; (4) that the order signed by said Howell specified that it was not binding upon the plaintiffs in this case until approved by them at Iowa City, Iowa; (5) that the said W. F. Maine & Co. approved said order, not for the $180 assortment, but only for the $80, and notified these defendants that they had approved the order for $80, and that they would ship the $80 assortment; (6) that, although the order signed by said Howell was in writing, and even if the said salesman had no right to agree to reduce said order to an $80 order, and if the said W. F. Maine & Co. was not bound by this agreement made by their salesman, after their salesman reported his promise and agreement to reduce said order to an application for an $80 assortment to Maine & Co. and after they accepted the order for an $80 assortment, and approved and ratified the promise and agreement made by their said salesman, then that they be came bound to only ship to these defendants an $80 assortment; (7) that the said paper signed by said Howell was only an application for jewelry, and was not binding upon W. F. Maine & Co., until approved by them, and for this reason it was not binding upon these defendants until approved by the plaintiffs; (8) that W. F. Maine & Co. did not approve said application for $180 assortment, but only approved it for an $80, and for this reason a valid binding contract and agreement was only made by and between these plaintiffs and defendants for the sale and purchase of an $80 assortment; (9) that even though the said salesman had not agreed to reduce the order signed to an $80 order, and even if the said W. F. Maine & Co. had never consented to such promise and agreement made by their said salesman and agent, then and in that event these plaintiffs would not have become bound for the purchase of any