larger order than was approved by the said defendants, and for this reason they would not be bound for more than an $80 assortment; (10) that for these reasons, after the defendants became bound for not more than an $80 order, and after the plaintiffs became bound to sell not more than an $80 assortment, then that these defendants had a right to refuse to receive and pay for more than an $80 assortment, and after a different assortment was shipped they had a right to refuse to accept it; (11) that even if the said defendants were bound to accept the $180 assortment, provided it was approved by the plaintiffs, in spite of the promise on the part of the said salesman to reduce it to an $80 assortment, and even though the said application, by ratification or otherwise, was never reduced to an $80 application, then and in that event these defendants had a right to refuse to accept an $80 assortment after the plaintiffs failed and did not approve said order for $180 assortment; that because of said detailed facts these defendants in no way ever became bound and liable to the said plaintiffs, W. F. Maine & Co., for any amount whatever." The court refused to allow the amendment; and to this the defendants excepteů.

A verdict in favor of the plaintiff for $180 was directed by the court; and this and other rulings are complained of in the defendant's motion for a new trial, to the refusal of which he excepted. In the fourth ground of the amended motion for new trial it is complained that the court excluded from evidence a letter from the plaintiff to the defendant, which the defendant sought to introduce, as follows: "We have filled your order for one of our $80 assortments, showcase and table goes forward by freight, and jewelry follows by express. Upon receipt of the consignment we would be pleased to have you write us as to whether the goods have been received safely, how you like the appearance of the goods, etc. Wishing you success and awaiting your further pleasure, we remain," etc. In the fifth ground it is complained that the court refused to allow A. T. Howell, a witness for the defendant, to testify as follows: "At the time I signed the said order, and before I signed it, I told the agent and salesman of Maine & Co. that I would not sign the said order unless he would mark and change the order from a $180 order to an $80 order, and he agreed to do this. I went over the list hurriedly with him, and he promised to leave off and mark from the order enough of the most costly articles to amount to $100, and leave the order for only $80. We agreed upon the jewelry to be left off, and he was to make the calculation and leave off enough to make the reduction to an $80 order. We were both in a great hurry, and I only signed the order upon the said representations made by the said salesman." In the sixth ground it is complained that the court refuse to allow the same witness to

testify as follows: "Before this claim now sued upon was ever presented to me by the present attorneys for W. F. Maine & Co., one Mr. Walker, an attorney at law, presented the claim to me and asked me to pay it, and I refused, and he then told me he would take charge of the jewelry and realize all that he could out of the jewelry for this said W. F. Maine & Co., and I told him that he could get the jewelry from the transportation company if they had not shipped it back, and that I did not want it at all, and for him to sell it and get all that he could possibly realize out of it for the company."

Lankford & Dickerson, for plaintiffs in error. Quincy & McDonald, for defendant in

error.

ATKINSON, J. (after stating the facts). 1-3. Under the view we take of this case, the written contract would not be complete until approved and accepted by the plaintiffs at their home office in Iowa City. That being true, it was competent for the defendant to plead and prove the things alleged in the amendment to the plea. If the defendant as a matter of fact contracted with the salesman of the plaintiffs for an $80 order only, and signed the order which contained the list of articles valued at $180, but upon the understanding that the agent should mark off so many of the articles as to reduce the order to an assortment of $80, it being agreed at the same time that the order should not constitute a contract until approved and accepted by the principals, and if the agent reported these agreements to the principal at the time of sending in the order, so as to give them information before acting upon the order, and the prinicpals, with notice of such facts, did not approve the order for $180 worth of jewelry, but for $80 worth, it would only be a binding contract for that amount. The proposed amendment to the plea having set forth in substance that all of these matters occurred in the manner stated, it was erroneous for the court to refuse to allow the same. From what has been said it is evident that the court also committed error by refusing to admit in evidence the letter referred to in the fourth ground of the amended motion for new trial, and likewise the testimony of Howell, as referred to in the fifth ground of the amendment.

4. The testimony of the witness Howell, which is referred to in the sixth ground of the amended motion for new trial, would have been admissible had the proper foundation been shown therefor. Before the matters referred to therein would be admissible, the burden would be upon the defendant to show affirmatively that the attorney Walker was the representative of the plaintiffs without authoritiy to act. There was no evidence to show any such relation between the attorney Walker and the plaintiffs, and it

would have been proper for the court to exIclude this evidence upon that ground.

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

(127 Ga. 666)

LANKFORD v. PETERSON. (Supreme Court of Georgia. Feb. 15, 1907) DEEDS CONSTRUCTION-RESERVATION.

A deed conveying "all of lot of land number 178, in the sixth district of said county of Coffee, containing 490 acres, more or less, save and except the timber on said lot of land suitable for turpentine purposes and the timber thereon suitable for sawmill purposes, except dead timber for plantation purposes, which is hereby reserved by said B. Peterson unto himself, his heirs and assigns, with the privilege of utilizing the same for turpentine purposes, within and during a period of five years from the date of this instrument, and with the privilege to him, the said grantor, to cut and remove the timber on said lot of land suitable for sawmill purposes within and during the space and period of eight years from the date of this instrument; the said grantor to have the further privilege of such ingress and egress in, from, upon and over said lot of land as may be necessary for the removal of said timber and turpentine products therefrom" reserves to the grantor, for sawmill use during the specified time, all the dead timber on the land suitable for sawmill purposes, with the right to the grantee to have and enjoy during this time so much thereof as may be necessary for plantation use.

(Syllabus by the Court.)

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

Action by W. C. Lankford against B. Peterson. Judgment for defendant, and plaintiff brings error. Affirmed.

Lankford & Dickeson, for plaintiff in error. J. Willis Darb, for defendant in error.

EVANS, J. On November 7, 1904, B. Peterson executed to Levi O'Steen his deed, conveying "all of lot of land number 178, in the sixth district of said county of Coffee, containing 490 acres, more or less, save and except the timber on said lot of land suitable for turpentine purposes and the timber thereon suitable for sawmill purposes, except dead timber for plantation purposes, which is hereby reserved by said B. Peterson unto himself, his heirs and assigns, with the privilege of utilizing the same for turpentine purposes, within and during a period of five years from the date of this instrument, and with the privilege to him, the sald grantor, to cut and remove the timber on said lot of land suitable for sawmill purposes within and during the space and period of eight years from the date of this instrument; the said grantor to have the further privilege of such ingress and egress in, from, upon and over said lot of land as may be necessary for the removal of said timber and turpentine products therefrom." Subsequently O'Steen conveyed to Lankford that part of the land which lay east of a named railroad, containing 100

acres more or less. Lankford filed his petition against Peterson to restrain him from cutting and removing any dead timber on land embraced in his deed from O'Steen. On the interlocutory hearing the court construed the reservation of timber for sawmill purposes in the deed from Peterson to O'Steen to include the dead timber suitable for sawmill purposes, except so much and such as may be used for plantation purposes, and denied the writ of injunction. The plaintiff excepted to the refusal of an injunction, and submits in his brief filed in this court that the only question involved in the present record is the construction of the deed from Peterson to O'Steen.

When we proceed to analyze a written instrument, we should approach the undertaking with a full appreciation of the fundamental rule of construction that effect shall be given to the intention of the maker of an instrument, as far as the same is lawful, and can be gathered from the contents of the paper. Peterson v. Atlanta R. Co., 120

Ga. 967, 48 S. E. 372. The terms of the deed evince a clear and unambiguous intention to except from the deed timber suitable for sawmill purposes. Was this exception limited to growing timber, or did it also embrace such dead timber as was proper for sawmill purposes? The draftsman of the Ideed was careful to draw the distinction between timber suitable for extracting turpentine and that suitable for sawmill purposes. The reservation in the deed excepts "the timber on said lots of land suitable for turpentine purposes and the timber thereon suitable for sawmill purposes," clearly indicating that timber adapted for one purpose might not be fit for the other, and an intent to accept timber suitable for either purpose. A conveyance of timber suitable for turpentine and sawmill purposes, if the context requires it, will convey such timber only as is fit for both turpentine and sawmill use, while, on the other hand, if the conveyance be of timber suitable for sawmill purposes, it will include all timber ordinarily used for manufacture into lumber. Gray Lumber Co. v. Gaskin, 122 Ga. 342, 50 S. E. 164. There is no reason for saying that the words, “timber for sawmill purposes," when employed in a grant, should have a different meaning when used to express an exception in a grant. The exception of the sawmill timber itself contains an exception of “dead timber for plantation purposes." This is contended to have the effect of conveying all the dead timber, and limiting the sawmill timber excepted to growing trees. We do not think such an interpretation can be placed upon the exception in the reservation of timber for sawmill purposes. We may gather from the tenor of the whole deed that the grantor was careful not to sell his sawbill timber, and the grantee was purchasing the land for agriculture, and not sawmill

use. When the land or any part of it was devoted to agriculture, such dead timber as might be necessary for plantation use was conveyed. The context shows that this clause was used, not so much as descriptive of a certain class of trees excepted from the reservation of the sawmill timber, as it was to indicate the grantee's rights to have and enjoy the dead timber while it remained on the land for plantation purposes, though such dead timber might also be suitable for sawmill use.

We concur in the construction placed on the instrument by the able trial judge; and his refusal to grant an injunction is affirmed. All the Justices concur, except FISH, C. J., absent on account of sickness.

(127 Ga. 586)

SOCIAL BENEV. SOC., NO. 1, v. HOLMES. (Supreme Court of Georgia. Feb. 15, 1907.) 1. INSURANCE-MUTUAL BENEFIT INSURANCE -ACTIONS-PARTIES.

The petition sufficiently set forth that the defendant is a benefit society. It is alleged that, under the charter and by-laws, the nearest relative of a member is the beneficiary of the fund payable upon the death of the member. It being alleged that the plaintiff's ward was the nearest relative of the deceased member, the suit was properly instituted in the name of the plaintift.

2. SAME-CONTRACT-NECESSITY OF CERTIFI

CATE.

A certificate of membership is not indispensable to the completion of a contract between a member of a benefit society and the society. In the absence of a certificate of membership, it is competent to look to the by-laws of the society, to determine the obligations of the society, existing by reason of a good-standing membership therein; and, unless there is an express provision in the by-laws that a certificate of membership is essential, the by-laws and the mere existence of the good-standing membership may alone be regarded as constituting a valid contract for the doing of anything for which the society is bound by its bylaws to the member.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28. Insurance, & 1854, 1856.]

3. SAME-PLEADING.

Where the provisions of the charter and the by-laws of a benefit society are relied upon in the plaintiff's declaration, as constituting the contract upon which the action is founded, and there is no allegation of the substance of such charter and by-laws, but only an averment which amounts to a conclusion as to the effect thereof, the declaration is subject to special demurrer upon the ground that copies of the provisions of the charter and by-laws relied upon are not attached. The objection is not overcome by alleging that the plaintiff has not the charter and by-laws, but has served the defendant with notice to produce them. 4. GUARDIAN AND WARD-ACTION-CAPACITY OF GUARDIAN.

There being sufficient allegations to state a cause of action in favor of the beneficiary, who was a minor, it was competent for the suit to be instituted in her behalf by her guardian. 5. INSURANCE-ACTION-PLEADING.

While the law requires a contract of insurance to be in writing, it is not necessary to allege, in a suit on an insurance contract, that it is in writing. In such a case, as against

a demurrer, the presumption is that the con tract is in writing, as the law requires it to be. 6. PLEADING - AMENDMENT - NEW CAUSE OF ACTION.

The amendment offered in this case did not add a new cause of action. It was properly allowed, and the petition as amended was not open to the general demurrer, nor to any ground of the special demurrer for any reason assigned, except as ruled in the third headnote.

(Syllabus by the Court.)

Error from City Court of Waynesboro; Phil. P. Johnston, Judge.

Action by Martha Holmes, guardian, against the Social Benevolent Society, No. 1. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Brinson & Davis, for plaintiff in error. Lawson & Scales, for defendant in error.

ATKINSON, J. Martha Holmes, as guardian for Estelle Crumley, brought suit against the Social Benevolent Society, No. 1, alleging: That the defendant was a corporation chartered under the laws of Georgia for benevolent purposes, with principal office and place of business at Waynesboro, Ga. That the defendant is indebted to the plaintiff in the sum of $200, besides interest, which indebtedness arose as follows: Mary Crumley, the mother of plaintiff's ward, was, at the time of her death, a member in good standing in the defendant's society, and, under the by-laws of the society, 30 days after the death of a member, such society became indebted to the nearest relative of the deceased, in a sum equivalent to the number of their members, upon a basis of 50 cents each. Plaintiff has not a copy of the by-laws and rules to attach hereto, but has served notice to produce the same. At the date of the death of Mary Crumley, there were 400 members of the society, which, at 50 cents each, would make the amount due the nearest relative of the deceased $200. Mary Crumley left only one heir at law, to wit, the plaintiff's ward, who is entitled to receive the sum above referred to. The plaintiff has demanded payment, and payment has been refused. Attached to the petition (which appears to have been served with it) is a notice to the defendant to produce its record and books, certificate of incorporation, and a copy of its rules and by-laws in force at the time of the death of Mary Crumley, and also the original rules and by-laws in force since its organization. By amendment the plaintiff alleged: That Mary Crumley died on May 20, 1903, leaving no debts, and leaving the plaintiff's ward as her sole heir at law; that subsequently an assessment was made by the society according to its bylaws, upon a membership of 400, thereby assessing its membership, for the benefit of the plaintiff's ward, in the sum of $200; that under such assessment $200 had been paid into the treasurer of the society, and the society, instead of paying over the money to the plaintiff as the person properly entitled

to receive it, has appropriated such funds to its own use; that the assessment was within the scope of the power and authority granted under the articles of incorporation, and has been assented to by all of the membership, and the money so paid off was collected for the purpose of discharging the obligation to the plaintiff's ward, under its rules and bylaws above referred to; that no part of the amount so collected has been paid over; and that the assessment so made was entirely for benevolent purposes, to aid the family in burying the dead, to maintain the family during last illness, etc. This amendment was allowed, over the objection of the defendant; such objection being: (a) That the scope of the authority and powers of the company was not sufficiently set forth. (b) That the amendment added a new and distinct cause of action; the original cause of action being upon an express contract with the mother of plaintiff's ward, and the amend. ment setting up an implied contract for money had and received. Prior to the amendment the defendant had interposed a demurrer, which the defendant insisted on, alleging that the petition as amended should be dismissed for the reasons set forth in the demurrer. The grounds of this demurrer were: (a) No cause of action is set forth. (b) Only an administrator of Mary Crumley has a right to bring suit. (c) No right of ac tion in the guardian is shown by the allegations of the petition. (d) No copy of the bylaws is attached to the petition. (e) No copy of the charter is attached to the petition. (f) The contract sued on is one of insurance, and is not in writing. The court overruled the demurrer, and the defendant excepted, assigning error both upon the allowance of the amendment and the overruling of the demurrer.

1. The petition sufficiently sets forth that the defendant is a benefit society. The scheme of the society fully appears. The plan was that the members were to pay in a certain assessment upon the death of a member in good standing, which was to go to the nearest relative, to be applied to the payment of burial expenses, expenses of last sickness, etc. Under these conditions, the nearest relative is the beneficiary of the fund raised by the assessment of the members, upon the death of any member in good standing, and the right of action is in such relative. 2 Bacon's Benefit Soc. (3d Ed.) § 396. the general rule is that a party cannot bring suit upon a contract unless there is a privity existing between the plaintiff and the defendant, it seems now to be settled that, in contracts made by insurance companies and benefit societies, there is such a privity between the society and the beneficiary designated in the certificate, if one was issued, or in the by-laws if no certificate was issued, as would authorize such beneficiary to bring suit in his own name.

While

and the organization of which she was a member seems, under the allegations of the petition, to rest in the charter and by-laws of the company. Her rights, or the rights of any one claiming under her, are fixed by her being received as a member, and by her maintaining her good standing in the order. The allegations of the petition are sufficient as to alleging that Mary Crumley was received as a member of the order, and that she was in good standing at the time of her death; and the mere fact that it is not alleged that a certificate of membership was issued to her does not prevent the contract resulting from her relation to the society from becoming operative and binding between her and the society, during her lifetime, for her benefit, and for the benefit of the beneficiary provided by the by-laws of the society in the event of her death. A certificate is not indispensable to the completion of a contract between a member and a benefit society, and, in determining whether or not the contract with the society is complete with the issuance of the certificate, the laws of the society must be also regarded. "The question is one of construction, and the courts will save the contract whenever possible, even though a certificate be not issued." 1 Bacon's Benefit Soc. (3d Ed.) § 273a. The issuing of a certificate is not a condition precedent to the right of a beneficiary to receive the fund raised by an assessment under the rules of the association, unless the rules of the association expressly provide that the issuance of such certificate shall be indispensable. "We cannot think that it was the intention of the defendant, in making up its constitution, its general laws, and its bylaws, to make the issuing of such certificate a condition precedent to its liability to pay this amount to the families, etc., of deceased members who at the time of their decease were in good standing, and who had paid all the assessments, and fully complied with all the rules and regulations of the defendant up to that time. The neglect of the company might thus result in a forfeiture of the fund." 1 Bacon's Benefit Soc. (3d Ed.) 242. We think, as against the general demurrer, the petition sufficiently set forth the contract between the member and the benefit society, resulting from the operation of the rules and by-laws of the society under which the plaintiff was a beneficiary, and she had a right of action in her own name upon such contract. See, also, in this connection, the opinion of Justice Little in the case of Barbot v. Mutual Reserve Fund Association, 100 Ga. 694, 28 S. E. 498.

3. By special demurrer an objection is raised to the plaintiff's petition, upon the ground that the plaintiff did not set forth a copy of that part of the charter and by-laws relied upon by the plaintiff to constitute the contract which is insisted upon as a basis for a recovery. While the rule has been laid

son v. Robinson, 90 Ga. 756, 16 S. E. 969, 35 Am. St. Rep. 250, and Penn Tobacco Co. v. Leman, 109 Ga. 428, 34 S. E. 679, that it is not necessary to set forth an exact copy of the writing relied on, where its contents substantially appear in the petition, still the present case is not controlled by the rulings made in these cases, because here there is no effort made to state the substance of the charter and by-laws, but that which is stated is merely a conclusion from the by-laws. The allegations of the petition, taken alone, amount only to the plaintiff's construction of the charter and by-laws. It may be that when the writing, or its substance, is set forth, the court may construe it differently, so that it may then appear that there is no cause of action. Why make the defendant answer before the plaintiff has fully and distinctly set forth his cause of action? If a full statement of the plaintiff's case would show no cause of action, it is the defendant's right to dispose of it on demurrer, without being put to the expense or inconvenience of answer or trial on the merits. The defendant is seeking to avall itself of such a privilege by its special demurrer calling upon the plaintiff to set forth in the declaration a copy of the charter and by-law provisions relied upon. It is not sufficient reply that the defendant knows its own charter and bylaws. Such knowledge of the defendant would not enable the court to deal with the point on demurrer. Nor is it sufficient excuse, for failure to set forth the material portions of the writings, to allege that "the plaintiff has not a copy of the charter and by-laws but has served defendant with notice to produce the same." While it has been generally stated that such an averment is sufficient (8 Enc. Pl. & Pr. 739), still, in our opinion, it falls short of what is required by good pleading. The allegation indicates a tendency in the right direction, but does not avoid the necessity of attaching the copies or setting forth their substance. The case as pleaded being good as against general demurrer, it may be that the notice to produce will bring forth fruit in the shape of the needful copies, which may serve the plaintiff in good time, to be set forth in the pleadings in avoidance of the special demurrer, there by enabling the court to deal with the point on demurrer. Or it may be that the plaintiff will obtain copies elsewhere. At any rate, if within attainment of the court by proper diligence of the plaintiff, it is the duty of the court to require the plaintiff to plead them. There is no allegation by the plaintiff that diligence upon his part to obtain them would be unavailing.

The uniform procedure act of 1887 (Acts 1887, p. 64) provides as follows: "Sec. 3. Be it further enacted, that whenever by existing law, copies of contracts or other instruments of writing, records, exhibits and abstracts of writing, should be incorporated in or attached to the pleadings of the parties,

the same rule must be followed in pleadings referred to in this act." At the time of the passage of this act, we had no statute requiring that copies of writings which were the foundations of actions should be attached to pleadings. However, provisions were made for such attachment of copies, by rules of court. Code 1882, p. 1346, rule 12; Id., p. 1354, rule 4. The case of Mercier v. Copelan, 73 Ga. 636, had been decided previous to that act, and it was ruled in that case that, "a letter of credit under which drafts were drawn being set forth according to its effect in the declaration, it was not necessary to attach a copy thereof." We may treat that decision and the rules of the court as an announcement of the law as to whether it was necessary, prior to the passage of the uniform procedure act, to set forth copies of such writings. Section 4963 of the Civil Code of 1895 purports to codify the provisions of the uniform procedure act above referred to. This section is as follows: "Copies of contracts, obligations to pay, or other writings should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon. In suits to recover money on an insurance policy it shall not be necessary to attach a copy of what may be written or printed upon the policy, except what appears upon the face or in the body of the policy. In sults on account a bill of particulars should be attached. In actions for the recovery of land the plaintiff must attach an abstract of his title." It will be observed, however, that the language of the Code is broader than the act, and contains matter not expressed in the act. After the adoption of the uniform procedure act, this court, in the case of Gibson v. Robinson, 90 Ga. 756, 16 S. E. 969, 35 Am. St. Rep. 250, ruled: "Where, in an action upon an administrator's bond, the contents of the bond and a breach thereof are substantially set forth in the declaration, it was not necessary to attach to the declaration a copy of the bond Itself." Again, in the case of Penn Tobacco Co. v. Leman, 109 Ga. 428, 34 S. E. 679, which was decided after the adoption of the Code of 1895, it was ruled: "When the terms

of a contract are in writing and are set forth in the petition, as well as the material portions of the order the payment of which is guarantied, it is not necessary to attach as exhibits to the petition either the contract or the order for the goods." So, it is seen, that both before and after the passage of the procedure act, and both before and after the adoption of the Code, it has been uniformly held that, where the substance of the writing which is the foundation of the action is set forth, it is not necessary to set forth a copy of the writing itself. These decisions are controlling upon us, to the extent to which they go. It will be observed, however, that in all of the cases the substance of the writing was stated as a matter of fact,