PHILLIPS V. Loyd. (Supreme Court of Georgia. Oct. 28, 1889.) NEGOTIABLE INSTRUMENTS-BONA FIDE HOLDER— NOTICE. 1. According to the Code, § 2790, the purchaser of negotiable paper before due is affected with notice by any circumstances which would place a prudent man upon his guard in making the pur chase. viewed by the supreme court of the United | tion should issue restraining the defendants States. The contention there was that in error in that case from proceeding furthe supreme court of the United States ther against the property in question to colhad no jurisdiction, because the judgment lect these executions. Judgment affirmed. of the supreme court of Indiana, reversing the judgment of the circuit court, and directing the dismissal of an injunction, was the judgment of a higher court upon the action of a lower court, which had granted an interlocutory decree. This doctrine is also treated in Wells on Res Adjudicata, p. 364, § 441. Indeed it would seem to be self-evident, without the citation of authorities, that the former judgment of this court in this case between the same parties, which judgment determined the law of the case against the plaintiffs in error, would be a finality. The defendants in error sought a perpetual injunction. The court below refused to grant the injunction, upon the ground that the city had the right to make these assessments and issue these executions. This court reversed that judgment of the court below, and the only question in the case is as to the power of the city of Atlanta to make these assessments, and to issue execution against the property of the defendants for the collection of the same. When, therefore, this court determined that no such power or authority resided in the city of Atlanta by virtue of the laws of this state, it decided the whole case between these parties. Hence we decline to go into the present record, and we hold that the whole matter between these parties has been adjudicated. in superintending the preparation of materials for, Error from city court of Atlanta; VAN Broyles & Broyles, for plaintiff in error. Hulsey & Bateman, for defendant in error. 66 BLECKLEY, C. J. 1. The note sued on being negotiable, and the plaintiff having acquired it from the payee, for value, before maturity, he is entitled to protection against failure of consideration, provided he is not affected with notice thereof. The charge of the court, that if the circumstances were such as to put a prudent man on inquiry the plaintiff would be chargeable with notice of all that the pursuit of such inquiry would disclose, is in substantial accordance with the Code, § 2790, which declares that any circumstances which would place a prudent man upon his guard in purchasing negotiable paper shall be sufficient to constitute notice to a purchaser of such paper before it is due." Whether this provision of the Code is in conformity with the general commercial law on the subject, it is needless to inquire; for the law-merchant is subject to local modification by statute. The rule of the Code as to notice is the rule applicable to transactions in Georgia, whatever may be the law prevailing elsewhere. It may be that counsel for the plaintiff in error misapprehended the former adjudications of this court. It has been said that the decision of the superior court upon an interlocutory decree by the judge of that court is not final, and is not conclusive between the parties when the case comes up for final hearing; but when the decision of the inferior tribunal in an interlocutory proceeding is brought to this court, and the whole case is before this court as to whether, under the law, an injunction or receiver, or anything of that sort, should be granted or refused, and this court determines, upon the whole law of the case, that the injunction shall be granted or refused, that is a final adjudication of the case. It is not interlocutory as to this 2. The court erred in charging the jury court. It is interlocutory as to the supe- that if the plaintiff was the agent of the rior court, because the judge of that court payee, either to superintend the preparation may or may not grant an injunction, ac- of the material, in the shop, which was laid cording to his discretion. The facts may down in defendant's pavement, or in the be in controversy, and various things may superintendence or direction of the hands occur which would make it proper to in laying it, he would not be a bona fide award or refuse it in the first instance; purchaser of the note without notice, so as and, where it is a matter of discretion in to prevent defects in the pavement from bethe superior court, the mere holding by this ing available to the defendant in this accourt that such discretion was not abused tion. Such was the substance of this part would not be a final adjudication of the of the charge. It undertook to instruct the But when the case rests upon a ques-jury, as matter of law, that the agency of tion of law which goes to the whole case, the plaintiff would be notice, or the equivaas it did in this case,-that is, whether the lent of notice. We think it was a question city of Atlanta had authority to make for the jury how far the services of the plainthese assessments and issue execution against the trustees of this church,-and that question is determined by this court, it is a final adjudication upon the whole case. There was nothing left for the court below but to have decreed, upon the return of the remittitur, that a perpetual injunc case. tiff as agent for the payee of the note would or ought to charge him with notice of defects in the pavement. If these defects resulted from bad materials or bad work, the plaintiff might not have known that either was bad, and the nature of his agency might not have required him to know whether a good pavement would be the re- 2. There was sufficient evidence that the sult or not. One who superintends the exe- rule-book admitted in evidence contained cution of a formula for the preparation and the rules of force when the plaintiff was inuse of materials may have no reason to sus- jured, and whether he had knowledge of pect that the formula itself is faulty. The them or not was a question not going to agent of an architect to superintend the the admissibility of the rules, but to their erection of a building might be wholly ig-binding effect upon his conduct. That the norant of any flaw in the plan, or any de- rules existed, and what they were, constifects in the materials. Boit v. Whitehead, tuted one step in the defendant's evidence, 50 Ga. 76, is no authority for the charge giv- and that could be taken without first showen in the present case, nor is there any au- ing that the plaintiff had knowledge of thority known to us which would justify it. them. Judgment reversed. 3. The question to Turner, "When the brakeman, in the discharge of his duty, gives a signal for the engineer to stop, and he the right to rely upon the engineer stopping?" is not quite intelligible as it stands PARKER V. GEORGIA PAC. RY. Co. (Supreme Court of Georgia. Oct. 28, 1889.) EXAMINATION OF WITNESS-EVIDENCE-INSTRUC-in the transcript of the record. Doubtless TIONS-MASTER AND SERVANT. 1. Only in an extreme case, if at all, will a reviewing court order a new trial because leading questions were propounded to a witness. 2. The evidence being sufficient that the rulebook offered contained the rules of the company of force when the employe was injured, the book was admissible, without first proving that the employe had knowledge of the rules it contained. His knowledge was matter for either prior or subsequent verification. 3. 4. Whether an employe giving a signal to a co-employe had a right to have it observed, or whether it was possible to transact business without acting upon the assumption that it would be observed, is for decision by the jury, not by a wit ness. 5. Where the instructions sought are plainly implied in those given to the jury, failure to charge in express terms as requested is not error. 6. Failure of a railroad employe to extricate himself from a perilous situation brought on by the negligence of a co-employe, when he could do so by the use of ordinary care, will bar his right to recover. it means, has or had he the right? etc. Thus construed, the right would be for decision by the jury, not by the witness. That the question was objected to, and ruled inadmissible, without any ground of objection being stated, is of no consequence. Where the court sees for itself that the question is not legal, no ground need be mentioned for information of the court, and, if counsel propounding the question want the information, they should call for it. 4. Whether it be possible to transact business unless a brakeman giving a signal acts upon the idea that the engineer will obey it, is not for the witness, but for the jury, to decide. It was not error, therefore, not to allow the witness Turner to decide it in this case. That the court thought the question immaterial, and so said in ruling upon it, would not vitiate the trial or defeat the verdict. 5. Failure of the court to instruct the jury, 7. To refer to the jury the question of the in express terms, (the charge as given plainplaintiff's duty under certain circumstances de-ly implying such matter,) that an employe, tailed in the evidence is only to refer to them the question of his diligence or negligence, and is not error. 8. When the judge, at the request of the jury, on their return into court, pending their deliberations, has recharged them touching the law applicable to the plaintiff's negligence, he need not add anything respecting the defendant's negligence; no request as to that being made by the jury. (a) The court has a right to volunteer an additional charge, or to recharge on the general rule as to finding according to a preponderance of the evidence. (b) After giving this rule, for the court to add that by observing it the jury would, in his opinion, have no difficulty in arriving at a verdict, was not to intimate what the evidence was, or its effect, or which party ought to prevail. (c) To instruct the jury that ordinary care must be used when it will avail is plainly to imply that it need not be used when it will not avail. 9. The court did not unduly press the jury to arrive at a verdict, though, perhaps, the language addressed to them went to the limit of propriety. (Syllabus by the Court.) Error from city court of Atlanta; VAN EPPS. Judge. Hoke & Burton Smith, for plaintiff in error. Jackson & Jackson, for defendant in error. BLECKLEY, C. J. 1. Concede that the questions to Perkerson were leading; their allowance would not be cause for a new trial. It would be a very extreme case indeed in which the mere form of the questions to a witness would justify a reviewing court in setting aside the verdict and judgment. being in the discharge of his duty, has the right to rely upon other employes, doing their duty, is not error. In this case the jury must have understood from the charge given that any omission of ordinary and reasonable care by the co-employes of plaintiff would be a violation of his right to the safety and security which the observance of such diligence would afford. 6. The failure of a railroad employe to extricate himself from a perilous situation, when he could do so by the exercise of ordinary care, will bar him from recovery for a personal injury resulting from such failure, though the peril was brought upon him by the negligence of a co-employe. It is his duty to avoid the consequences of negligence, when he can do so by the use of ordinary care, (Code, § 2972;) and, to recover, he must be without fault, (Id. § 3036.) 7. To refer to the jury whether, in certain circumstances detailed by the evidence, the plaintiff ought to have done so and so, is not error. The charge complained of in the tenth ground of the motion for a new trial simply left to the jury the question whether certain conduct on his part would or would not be negligence. 8. When the jury return into court and request to be recharged on a certain part of the case, to-wit, the plaintiff's negligence, the counsel for both parties being present, it is the right of the court to comply with their request. And it is also the right of the court to stop there, and not recharge Error from city court of Atlanta; VAN EPPS, Judge. Arnold & Arnold, for plaintiff in error. F. M. O'Bryan, Sol. Gen., for the State. BLECKLEY, C. J. 1. The charge of the court touching the effect of evidence as to the general character of the accused, tested by Shropshire v. State, 8 S. E. Rep. 450, (Oct. term, 1888,) is not accurate; but, under the evidence in this case, the deviation from accuracy is not sufficiently material to require or justify a reviewing court in ordering a new trial. upon the defendant's negligence, though counsel for the plaintiff call for a recharge or a further charge to be given on the latter subject. The jury having confined their request to the negligence of one party, it is presumable they were in no perplexity as to that of the other. It was also the right of the court to volunteer an additional charge on the general rule of law touching the preponderance of evidence as a rule of decision in civil cases, and to add that by the observance of this rule the jury, in the opinion of the court, would have no difficulty in arriving at a verdict. While this may have implied that the court thought 2. That part of the charge which would the evidence preponderated on the one side seem to imply that a single instance of or the other, it conveyed no intimation as gaming in the house would impress it with to what the evidence was, or its effect, or the character of a gaming-house was given which party ought to succeed. In recharg- while the court was dealing with the quesing on the plaintiff's negligence, the court tion of control over the room, notwithstated the law accurately, as we think; standing the accused had rented it out to and, though the jury were not reminded other parties for certain purposes. The that, if the plaintiff could not have pro- purpose of the court in this part of the tected himself by the use of ordinary care, charge was to instruct the jury that, nothis failure in such case would not defeat withstanding the room had been so rented, him, yet that was plainly implied in the certain acts of control, including the allowcharge itself. There would be no sense in ance of gaming, and the participation referring to the protecting power of ordi- therein by the accused himself, would rennary care as a cause for defeating the ac- der him responsible as the keeper of the tion, if the absence of such protecting pow-house, if he did keep it as a gaming house er would equally with its presence render or room. These instructions were subthe use of ordinary care necessary. In oth-stantially in accordance with the ruling of er words, to say that ordinary care must be used when it will avail is plainly to imply that it need not be used when it will not avail. this court upon a like question in Scott v. State, 29 Ga. 263, in which it was held that, under an indictment for keeping a gaminghouse, the defendant does not relieve himself by showing that he had rented out the house before the gaming was done, when it appears that the house was in his possession when the gaming occurred. 9. The court, after recharging the jury, said to them: "This jury is, in the eye of the law, as capable of deciding this case and reaching a verdict as any that may be impaneled hereafter, and I am disposed to give 3. The evidence, we think, warranted the you some further opportunity to consider jury in arriving at a verdict of guilty, your verdict. Go to your room, and make more especially as it affirmatively appears an honest effort to agree on a verdict, and that several persons who were present, apfollow the rule I have given you, and I do parently engaged in gaming when the ponot think it will trouble you in agreeing." lice raided the establishment, were accessiThis, we think, was not unduly pressing ble as witnesses, and could have been introthe jury to a verdict, though it went, per-duced by the accused if he had been willing haps, to the allowable limit. White v. Ful- to abide by their testimony. Even his ton, 68 Ga. 511; Railroad Co. v. Neighbors, clerk, who must have known whether the ante, 115, (this term.) There was no error room was kept as a gaming-house or not, in refusing a new trial. Judgment affirmed. was not introduced. Had there been any reply to be made to the inculpatory evidence produced by the state, it was clearly in the power of the accused to answer that evidence; and his failure to do so, notwith(Supreme Court of Georgia. Nov. 4, 1889.) standing his ample opportunity, could well CRIMINAL LAW-CHARACTER-GAMING. be considered by the jury as adding 1. Though the charge of the court as to good strength and force to the prima facie case character of the accused in its relation to the rea- made out by the state. He introduced sonable doubt was not quite accurate, the inaccu- other witnesses who did not know the maracy was not of sufficient importance to require a terial facts, but carefully avoided introducnew trial. 2. Though a room be rented out, if the landing those who did know them. "Where a lord use it to serve drinks to his bar customers, party, being apprised of the evidence to be and to play cards with them for money, having a adduced against him, has the means of extable, cards, and "chips" in the room for the pur-planation or refutation in his power, if the pose, he may, notwithstanding his tenants are also using it for storing their property, etc., be convicted of keeping it as a gaming-house. STEPHENSON V. STATE. 3. The evidence was sufficient to warrant the verdict, more especially as the accused, in selecting his witnesses to reply to the state's evidence, chose those who did not know the material facts, rather than those who did, though the latter were equally accessible. (Syllabus by the Court.) charge or claim against him be unfounded, and does not explain or refute that evidence, the strongest presumption arises that the charge is true or the claim well founded. It would be contrary to all experience of human nature and conduct to come to any other conclusion." 1 Starkie, Ev. 545. The court did not err in refusing a new trial. Judgment affirmed. GEORGIA RAILROAD & BANKING Co. v. (Supreme Court of Georgia. Nov. 11, 1889.) Kingston. The declaration alleges that it all went or was consigned to Dalton, and makes no mention of or reference to Rome or the Rome Railroad. The overcharged iron, if indeed any of it was overcharged, was preceded by some which was not overcharged, but was carried at a special reduced rate, to which all the carriers concerned assented, the contract with the consignee for that rate being made by the authorities of the state road, but not closed until the other members of the line, or persons authorized to represent them, had been Consulted. This contract, as finally agreed upon, was made in July, 1869, and there is no dispute that iron was carried under it, and at a rate conforming to its terms, from August, in which month the transportation began, until the last of November, when shipments ceased, until the following Janu 1. Where the chief pressure of the case was upon the question whether the defendant, in consenting to, and authorizing, a given contract, made with the consignee by the plaintiff in behalf of both carriers, for the transportation of certain freights, at a special reduced rate, over their respective railways, as a connected and continuous line, acted upon information derived from the plaintiff that the contract was, or was to be, limited in its performance to a certain portion of the year, a written request by the defendant to the court to charge the jury in appropriate terms (the same being set out in the request) upon that specific question, should have been complied with. The instructions should have been given in the language requested, or in language substantially equivalent thereto. 2. If the terms of a contract between two rail-ary. From January to June, both incluways be agreed upon by correspondence, a limita tion or condition inserted in one or more of the communications need not be repeated or referred to in subsequent ones, in order to preserve its force. 3. When some of the writings fixing the terms of a contract are lost, testimony as to how the par ties themselves interpreted, acted on, and treated the contract while the business was in progress, may be looked to, in connection with other evidence, to ascertain its terms and meaning. sive, when the transportation of the iron was concluded, all the carriers concerned charged at an increased rate, the increase being caused, or at least suggested, by a communication by letter or telegram from the state road to the Georgia road, dated in December. The state road credited the Georgia road on its books with the share of the latter road in the freights on all the iron, and the result was that in current settlements the latter road realized the whole of its share of freights produced by the increased rate. But the consignee refused to pay the state road for any part of the line at that rate on the iron consigned to Dalton, insisting on settling upon the basis of the 5. The general rule is, that on money paid by low special rate, and to this demand the mistake, where there is no fraud or misconduct by state road yielded in November, 1870. the party receiving it, interest does not run until Whether the consignee took the same stand after demand. Prior to demand, by suit or other-as to the iron consigned to Rome is not quite wise, the receiver is in no default. 4. The declaration being for the recovery of overcharges paid the defendants on shipments to Dalton only, the same should be amended in order to recover for overcharges paid on shipments to Rome also, if both sets of overcharges be embraced in the amount sued for. The allegata and probata in descriptive matters ought to correspond. 6. Prima facie evidence is such evidence as, in judgment of law, is sufficient, and if not rebut ted, remains sufficient. It may be rebutted by developing additional facts consistent with its truth, but tending to an opposite conclusion, or by proving it untrue or untrustworthy in whole or in some material part. certain, but if not, and if the increased rate on that part of the iron was paid by the consignee either to the Rome road or to the state road, the evidence indicates that the excess over the low special rate was refunded by the latter road. So that the whole 7. The books of the Western & Atlantic Rail- Sum sued for in this action, besides its own road, though made by statute prima facie evi- share of the overcharges, was lost to the dence, may be rebutted or discredited as to partic-state road, either by forbearing to collect ular entries by internal or external evidence of falsity or error. BLECKLEY, C. J. In 1874, the state, as owner of the Western & Atlantic Railroad, brought suit in the name of the governor against the Georgia Railroad & Banking Company, for $3,263.40, principal, besides interest, alleged overcharges by the latter, paid to it by the former, on iron consigned to another railroad company, the Selma, Rome & Dalton. All the iron, the subjectmatter of the overcharges sued for, was shipped from Charleston, most or all of it to Dalton, the residue, if any, to Rome, and passed, first over the South Carolina, then Over the Georgia, and then over the state railroad. So much of it, if any, as went to Rome passed also over the Rome Railroad which connects with the state road at any of it from the consignee, or by so forbearing as to the greater part, and refunding the balance after having collected such balance. Whether the state can recover the money sued for from the Georgia Railroad & Banking Company, to whom it was paid by the state road in current settlements, depends somewhat on several scarcely doubtful questions, on which the court charged the jury correctly, but chiefly on the doubtful question, under the evidence, whether, as between the state road and the Georgia road, the contract of July, 1869, was limited in the time of performance to the summer months or to the summer and autumn months of the year in which it was made, or whether it was without limit as to time, so that it embraced not only the shipments which came forward from August to November, 1869, but also those of January and June, and the intervening months of 1870. That the contract actually made with the consignee by the state road in behalf of all the carriers was without any time limit is rendered probable by the evidence. That the contract bound the Georgia road, relatively to the consignee, is also probable, for it is shown that the agent | like obligation as between the two roads. of the consignee saw, at the time of closing If an agent has private instructions from the contract, a dispatch from the superin- his principal, and yet violates them in dealtendent of the latter road to an officer or ing with third persons, the rights of these agent of the former, saying to close the con- latter against the principal will not be the tract, which dispatch was silent on the ele- measure of the rights of the agent against ment of time, and such a dispatch was in him in settling up the transaction. The fact sent. The agent had a right to rely. refusal of the court to charge in the lanand it may be presumed did rely, upon this guage of the request above quoted, or in dispatch as authority from the Georgia language substantially equivalent to the road to the state road to represent it in same, was error, manifest and material. making such terms as had been agreed up- 2. The request to charge, set out in the on, or were then agreed upon, by and be- eighteenth ground of the motion, should tween himself, in behalf of his principal, and also have been acceded to; that is, "if the the state road, in behalf of the whole line, contract be alleged to have occurred by the Georgia road included. letter or telegram, and if, in any or either 1. It thus appears that in order to reach of the communications on the subject, the and decide the merits of the present con- limitation or condition was inserted it troversy it is indispensable that it be ascer- would not be necessary to repeat or again tained whether, assuming the contract refer to such condition or limitation in with the consignee to have been without a every subsequent letter between the partime limit, the state road acted with or ties in order to preserve its force. If the without the consent of the Georgia road alleged condition or limitation existed, in omitting to impose that limit. If the and was so understood between the parstate road, in proposing a contract to the ties in point of fact, it should be regarded Georgia road, and inviting its consent and enforced as part of the contract, thereto, named terms, including a time lim- whether again repeated or alluded to in it, and then closed a contract with the con- other or subsequent letters or telegrams or signee comprehending no such limit, the not." Several telegrams and one or more Georgia road would clearly have the right letters touching the contract in question to stand, relatively to the state road, on were sent by the superintendent of the the same footing as if the time limit agreed Georgia Railroad which were silent as to upon between the two roads had been put any time element. One of these was the into the contract made by the state road telegram above referred to, giving authorwith the consignee. To meet this aspect ity and instructions to close the contract. of the case counsel for the Georgia road re- The silence of all of these documents upon quested the court to charge the jury (tenth the element of time is strongly suggestive ground of the motion for a new trial) as of the theory that in the contemplation of follows: "Even though the jury should the writers time was not of the essence of find, under the evidence, that the W. & A. the agreement between the two roads; yet R. R. made the contract alleged, and so it is true, as the request to charge lays it agreed or promised as to bind itself to down, that, if in any or either, of the comtransport the 4,300 tons of iron and spikes, munications on the subject a limitation or without limit in time to the summer and condition was inserted, it would not be autumn, still, if as between them and the necessary to repeat or again refer to such officers of the Georgia Railroad Company limitation or condition in every subsequent the understanding was that the transpor-letter between the parties, in order to pretation of iron was to take place during the serve its force. Thus, if in the lost telesummer and autumn, and the Georgia Rail- grams, or any of them, from the state road road Company assented to the rate upon to the Georgia road, the condition or limitsuch understanding on its part, the plain- ation was inserted, and in point of fact tiff cannot recover." This request was the authorities of the two roads underpertinent and appropriate. It hit the case stood the limitation or condition as format the precise point on which the greatest ing a part of the contemplated contract, strain of the facts rested. Nor is any ade- the silence of any or all the subsequent quate substitute for its terms to be found communications on the subject would not in the charge as given. On the contrary, displace or defeat the time element; in oththat charge, in putting the case hypothet-er words, the silence of the subsequent ically to the jury, dealt only with the con- communications could be regarded by the tract actually made with the consignee, jury as tending to show what sort of a and not at all with the one which ought to contract the Georgia road authorized the have been made, as tested by the agree-state road to make in its behalf; but the ment and understanding between the state jury could not rightfully treat such silence road and the Georgia road. The dispatch as defeating the condition or limitation, or dispatches from the former road to the latter, which preceded the responsive dispatch authorizing the contract with the consignee to be closed, are lost. Whether they embraced a time limit is disputed, but there is parol evidence on the subject tending strongly to establish the affirmative. If the truth of the case is correctly rendered by that evidence, the state road, though it may have had authority which bound the Georgia road to the consignee to carry at the reduced rate without regard to time, had no such authority as would create a which, by an agreement of the two roads, was to be part of the terms of the contract that one of these authorized the other to make with the consignee. 3. Both these roads actually treated the agreement between themselves, and also that made with the consignee, as having expired with the autumn of 1869, or with the month of November in that year; and the suggestion to change from a lower to a higher rate came from the state road. It was in the acting on this suggestion that the alleged overcharges now sought |