case were given in settlement of the dispute between the payee and the maker touching his liability on a certain claim held by the latter against the former. There is no pretense whatsoever that this was not an honest difference of opinion touching the facts which constituted the real consideration of the $200 note that had been previously given by the defendant. If the contention of the lodge is correct, that note was intended as a rebate on the defendant's charges made against the lodge for plans and specifications; and, being given in settlement of the dispute then existing between the parties, it was supported by a valuable consideration. If, on the other hand, as contended by the defendant, it was given as a donation to the orphans' home, then the consideration thereof had failed when the lodge abandoned the purpose of building the home. There is no pretense that there was not an honest difference of opinion between the parties touching these facts. The dispute was finally settled amicably, and at the time, so far as the evidence shows, satisfactorily to both sides, by the giving of the new notes sued on in this case, in which time was extended for the payment of the claim. The defendant, in his testimony, really does not deny that a settlement of these differences between him and the lodge was the real consideration for these notes. We think there can be no question that such a consideration is sufficient to support the validity of a contract. The law favors a settlement of differences and a compromise of disputed claims between parties. It thus saves the time, expense, and trouble of litigation. It matters not if one party be right and the other wrong touching the validity of the original claim. The real consideration is in bringing about a settlement, preventing further annoyance, uncertainty, and doubt, and to avoid, it may be, the uncertain results of a vexatious, troublesome, and expensive litigation. As far as our investigation has extended, the authorities are uniform and unbroken to the effect that when there is an honest difference of opinion between parties touching a disputed claim, and especially if the difference is of such a nature as to render it at all doubtful as to who is correct, any settlement or compromise of these differences will be enforced by the courts, and neither party will be allowed to defend by showing that he was right in his original contention. Of course, it does not follow that, when one gives a note in renewal of another, the maker is estopped from pleading a want of consideration in the last note. Such a plea may be based upon an entire failure of consideration of the original note for which the last one was given, and the consideration of the latter is not changed from what constituted the consideration of the original debt. But the case is entirely different where the consideration really is the settlement of honest differences between the parties in order to prevent litigation. It is

also true that it does not necessarily follow that the settlement of every contract can be enforced. A new note, for instance, given in settlement of an illegal contract between the parties, cannot be enforced. A note given for a gambling debt, where there is no dispute between the parties as to its real consideration, can never be enforced, it matters not how many renewal notes are given, extending the time of payment. Bish. Cont. § 488. But legal authorities on those lines have no application whatever to the facts of this case. In the case of Morris v. Munroe, 30 Ga. 630, it was decided, "Where parties have conflicting claims, depending upon a law point, and they compromise them, each is bound by the settlement, whether the law point turns out to have been for him or against him." In Parker v. Association, 46 Ga. 196, McCay, J., in delivering the opinion of the court, says: "We agree that if there be a dispute, bona fide, as to whether any particular contract is tainted with usury, that the parties may, by accord and satisfaction, settle that dispute; but the payment of the usury is not such a settlement. It must appear that there was a bona fide dispute-uncertainty, doubt as to the existence of the usury; that the parties must have that doubt, dispute, distinctly in view in the settlement, and the resolution of the doubt must be a point of the settlement." See, also, on this subject, Bish. Cont. § 57; Clark, Cont. 175 et seq.; 3 Am. & Eng. Enc. Law, 837, and authorities cited. Indeed, if any other rule prevailed, settlement on compromise of disputes and differences would amount to absolutely nothing; for, in the event of a suit based upon the contract of settlement, either party I could go behind that agreement, set up defenses to the original claim, and contend that there was really no consideration for the compromise. Applying the above well-recognized principles of law to the facts of this case, we think that the verdict of the jury for the plaintiff was not only sustained, but was demanded, by the evidence, and the court therefore erred in granting the motion for a new trial. Judgment reversed. All the justices concurring.

(108 Ga. 446)

TUCK v. NATIONAL BANK OF ATHENS (Supreme Court of Georgia. July 25, 1899.) NOTE-DISCOUNT-PAYMENT TO PAYEE-DIRECTING VERDICT.

1. The fact that there was, between the payee of a negotiable promissory note and the bank at which the same was discounted, an agreement that the maker should be kept in ignorance that the note had been discounted, did not, without more, constitute a fraud upon the maker, or warrant him in paying the note to the original payee without requiring him to produce and surrender it.

2. It was error to direct a verdict upon conflicting evidence which would have warranted a finding contrary to that directed. (Syllabus by the Court.)

Error from city court of Athens; Howell Cobb, Judge.

Action by the National Bank of Athens against W. R. Tuck. Judgment for plaintiff. Defendant brings error. Reversed.

H. C. Tuck, Erwin & Erwin, and Lumpkin & Burnett, for plaintiff in error. John J. Strickland and W. S. Basinger, for defendant in error.

LITTLE, J. This case was here and decided at the March term, 1897. See 102 Ga. 556, 28 S. E. 172. It was simply ruled then that the principles announced in the decision in the case of Bank v. Tuck, 101 Ga. 104, 28 S. E. 168, controlled the case, and the judgment rendered in favor of Tuck was reversed, and a new trial ordered. At the next trial the court, at the conclusion of the evidence, directed a verdict for the bank, and Tuck made a motion for a new trial, which was overruled. There are but two grounds of the motion which need to be considered by us in determining the case. The defendant amended his pleas, which, in substance, allege that there was an agreement between the bank and the Reaves Warehouse Company that no notice should be given to Tuck or the makers of the note that the same had been discounted and were held by the bank; and it is alleged that the fact that the notes were discounted and so held was purposely and intentionally concealed from the maker, and it is insisted by the plea that this conduct was a legal fraud on the rights of the defendant, because it enabled the warehouse company to collect the notes, which they could not have done if the notice had been given. The amendments to the plea were, on motion, stricken by the court, and error is assigned in the first ground to the striking of the amendment.

The maker of a negotiable instrument, whether payable at a bank or not, is not by law entitled to notice of maturity and nonpayment; nor does the fact that the pledgee of such a note fails, by agreement with the payee or otherwise, to notify the maker of the fact that the note had been pledged, and who holds the same, of itself constitute any fraud against the maker. Not being entitled to such notice, he could not claim any benefit for the want of it. Circumstances might arise which would form an exception to this rule, but they do not exist in this case; and, as the amendments set up as a defense facts which could not operate as such if proven, the court committed no error in disallowing the amendments.

2. In the case of Bank v. Tuck, which was a case very similar to the one now under consideration, and the decision of which this court ruled controlled this case, the court held that the liability of the defendant depended upon whether the Reaves Warehouse Company was the agent of the bank, either express or implied, to collect the note. There

was much evidence introduced in the present case for the purpose of showing that the warehouse company had expressly been made the agent of the bank to collect the note sued on, as well as to show that no such agency existed. As far as we could, we have carefully compared the evidence in the record of the present case with that in the record of the case reported in 102 Ga., and 28 S. E., supra. This examination discloses that the evidence tending to show express agency on the part of the warehouse company to collect the note for the bank has been materially strengthened by the evidence of White for the plaintiff and O'Ferrall for the defendant, as their evidence appears in the present record. Indeed, after a careful consideration of the evidence of these witnesses, when taken in connection with the other evidence in the case, we are of the opinion that it puts in issue the fact of the existence of such agency. This being our conclusion, it follows, as a matter of course, that the court erred in directing a verdict for the plaintiff. Such a direction is only authorized when there is no conflict in the evidence, but where such evidence demands a particular verdict. Civ. Code, § 5331. We have made no attempt to set out the differences which appear to us to exist in the record in the former case and in this as to the testimony of the witnesses, nor do we intimate that if the case had been committed to the jury under proper instruction to find a verdict under the evidence before them, and they had returned the verdict which they did under the direction of the court, such verdict would have been contrary to the evidence. we do mean to say is that, as it appears in the record, the evidence upon the fact of agency is conflicting, and that there is enough to have warranted a finding contrary to that which was directed, and we reverse the judgment because under these circumstances the case should have been submitted to the jury for a verdict. Judgment reversed. All the justices concurring, except COBB, J., disqualified.

What

(108 Ga. 798)

GEORGIA S. & F. RY. CO. v. BOWMAN. (Supreme Court of Georgia. July 24, 1899.) RAILROADS-KILLING STOCK-EVIDENCE.

1. A verdict against a railroad company for the killing of live stock by the running of a train of cars cannot lawfully stand when the plaintiff's right to recover depends entirely upon the presumption of negligence which the law raises against the defendant, and when the uncontradicted evidence offered to rebut the presumption conclusively shows that the servants and agents of the company who were in charge of the train at the time the stock was killed exercised all ordinary and reasonable care and diligence to prevent such killing.

2. Under the facts disclosed by the record, this case falls within the rule above announced, and as a result the verdict was contrary to law, and should have been set aside.

(Syllabus by the Court.)

Error from superior court, Houston county; W. H. Felton, Jr., Judge.

Action by J. A. Bowman against the Georgia Southern & Florida Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

Hall & Wimberly and R. N. Holtzclaw, for plaintiff in error. H. A. Mathews and Guerry & Hall, for defendant in error.

PER CURIAM. Judgment reversed.

(108 Ga. 798)

PLUNKETT v. GEORGIA CHEMICAL WORKS.

(Supreme Court of Georgia. July 24, 1899.)

NONSUIT-WHEN GRANTED.

This case involves practically the same questions of law and fact as those presented in that of Plunkett v. Railway Co. (Ga.; decided at the March term, 1898) 30 S. E. 728. This being so, and the evidence now under review being in all substantial respects the same as that introduced on the trial of the case just mentioned, in which it was held that there was no error in granting a nonsuit, it follows that the trial court did right in giving the present case the same direction.

(Syllabus by the Court.)

Error from superior court, Richmond comty; E. H. Callaway, Judge.

Action by Emma Plunkett against the Georgia Chemical Works. From a judgment of nonsuit, plaintiff brings error. Affirmed on main bill of exceptions. Cross bill dismissed.

J. S. & W. T. Davidson, for plaintiff in error. Hamilton Phinizy and J. C. C. Black, for defendant in error.

PER CURIAM. Judgment on main bill of exceptions affirmed, and cross bill dismissed.

(108 Ga. 357)

HILLSINGER v. GEORGIA RAILROAD BANK.

(Supreme Court of Georgia. July 24, 1899.) CERTIFICATE OF DEPOSIT-MATURITY. A certificate of deposit issued by a bank, and payable to the order of the depositor "on return of this certificate properly indorsed," is not due until payment thereof is actually demanded. (Syllabus by the Court.)

Error from superior court, Richmond county; E. H. Callaway, Judge.

Action by M. Hillsinger against the Georgia Railroad Bank. Judgment for defendant. Plaintiff brings error. Affirmed.

T. W. Capers, for plaintiff in error. Jos. B. Cumming and Bryan Cumming, for defendant in error.

LUMPKIN, P. J. This case turns upon the determination of a single question, viz. whether or not a certificate of deposit issued by a bank in the form below given is due Immediately, or only upon presentation there

of at the bank with a demand for payment: "Georgia Railroad Bank. No. 3,013. Augusta, Ga., April 19th, 1898. Arnt Anderson has deposited in this bank forty 00/100 dollars, payable to the order of himself on return of this certificate properly indorsed. Not subject to draft. [Signed] C. G. Goodrich, Cashier." The real inquiry is, what construction should be placed upon the words "on return of this certificate properly indorsed"? We think their plain meaning is that the paper itself must be brought back to the bank, and a demand made for the money, and we know this view concurs with the common course of business in such matters. It is not contemplated, when a depositor places money in a bank and takes a certificate of this character, that the officials of the bank are to seek him out and make payment to him, but that he, or his indorsee, when payment is desired, will bring the certificate to the bank and ask for the money. In this connection, see 1 Morse, Banks, 8 301. Our own case of Lynch v. Goldsmith, 64 Ga. 42, is not in conflict with what is here ruled. There the certificate was payable, with interest, "on call"; and the court held it was, "in effect, a negotiable promissory note, payable generally on demand, and due immediately." This conclusion was doubtless reached upon the idea that the words "on call" were the exact equivalent of the words "on demand." It seems, however, that Bleckley, J., by whom the opinion in that case was delivered, was not entirely satisfied as to the correctness of the judgment, for, on pages 50, 51, he said: "Having spoken thus far for the court, candor obliges me to add that since the decision was pronounced the following line of reflection has occurred to me: What is a certificate of general deposit issued by a bank? Is it not an acknowledgment of the bank that it has received a loan of money from the depositor, coupled with a promise implied, if none be expressed, that it will repay the loan at the bank upon actual demand or call, if no particular time or place be specified? Does not the known course of business require this construction, and does not the nature of the transaction suggest it? If these questions be answered in the affirmative, there is no dishonor of the certificate until after actual demand at the bank, and consequently not until after such demand is the paper overdue." The language just quoted is peculiarly pertinent to the question now before us, and, moreover, the distinction between that case and the present one is clear and well marked. The requirement in the certificate for its "return" means something more than is indicated by the words "on call." A call for payment could be made by a written notice sent to the bank, or otherwise, in which event it might be incumbent upon the bank to seek out the creditor and pay him his money. But if he must return the certificate, as a condition precedent to his right to demand payment thereof, it seems to follow inevitably

that the instrument is not to be considered due until, in compliance with this essential prerequisite, the paper is actually returned, and payment requested over the bank's counter. If the foregoing be sound reasoning, it is evident that the cases of Morrison v. Morrison, 102 Ga. 170, 29 S. E. 125, and Hotel Lanier Co. v. Johnson, 103 Ga. 604, 30 S. E. 558, are in no way applicable to the case in hand. In them this court was dealing with ordinary promissory notes, payable generally "after date," and applied to them the rule which governs instruments of that character when made payable "on demand." Judgment affirmed. All the justices concurring.

(108 Ga. 797)

THOMPSON et al. v. MALLORY et al. (Supreme Court of Georgia. July 24, 1899.) PARTNERSHIP-EVIDENCE-ADMISSIONS. 1. Upon the trial of an issue of partnership or no partnership, the declarations of one of the alleged partners, whether oral or written, are inadmissible against another of them to prove the fact of partnership.

2. If, upon the trial of an action against an alleged partnership, the existence of the firm is established by competent evidence, then admissions against interest made by one of the partners within the scope of the business of the partnership are admissible to show liability upon its part.

3. At the trial now under review the court erred in not following the principles above announced, and consequently there should be another hearing.

(Syllabus by the Court.)

Error from superior court, Tattnall county; R. L. Gamble, Judge.

Action by Thompson & Wilkes against Mallory Bros. & Co. Judgment for defendants. Plaintiffs bring error. Reversed.

Isaiah Beasley and Jas. K. Hines, for plaintiffs in error. J. V. Kelley and Hall & Wimberly, for defendants in error.

PER CURIAM. Judgment reversed.

(108 Ga. 797)

PORTER et al. v. CUMMINGS. (Supreme Court of Georgia. July 24, 1899.) RECEIVER-APPOINTMENT-ADJUDICATION IN BANKRUPTCY.

There was, at the interlocutory hearing of an equitable petition for the appointment of a receiver to take charge of realty claimed by the plaintiff, no error in appointing a receiver upon evidence showing that so doing was proper, although it appeared that the defendant had been adjudicated a bankrupt, and that the United States court had authorized the trustee of the bankrupt's estate to have himself made a party to the case in the state court, which was done; it further appearing that the federal court had distinctly declined to interfere with the progress of the cause in the superior court, further than to enjoin the plaintiff from obtaining therein any money judgment against the defendant, and the order granted by the judge of the superior court being so framed as to pay due respect to that passed in the federal court, and to prevent any conflict in the jurisdiction of

these two tribunals as to the final disposition of the realty, and of the rents and profits thereof which might accrue in the receiver's hands. (Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action between J. H. Porter, trustee, and others, and T. E. Cummings. From the judgment, Porter brings error. Affirmed.

Slaton & Phillips and Rosser & Carter, for plaintiff in error. J. C. Jenkins and Mayson & Hill, for defendant in error.

PER CURIAM. Judgment affirmed.

(108 Ga. 409)

HUNTER v. MORGAN et al. (Supreme Court of Georgia. July 25, 1899.) GARNISHMENT-WAGES OF "LABORER.”

Under the ruling made by this court in the case of Oliver v. Hardware Co., 25 S. E. 403, 98 Ga. 249, followed in McPherson v. Stroup, 28 S. E. 157, 100 Ga. 228, the defendant in the present case was not a "laborer," and his wages were therefore subject to the process of garnishment.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by Morgan & Bro. against H. L. Hunter. Judgment for plaintiffs. From a judgment finding wages of defendant subject to garnishment, he brings error. Affirmed.

Culberson & Willingham, for plaintiff in error. Daley & Hall, for defendants in error.

COBB, J. Morgan & Bro. obtained a judgment against Hunter, and caused summons of garnishment issued thereon to be served upon the Southern Railway Company. The defendant claimed that he was a laborer in the employ of the Southern Railway Company, and that the amount due him by the railway company was for monthly wages, and that the same were not subject to the process of garnishment. Upon the trial of this issue the defendant testified as follows: "At the time of the service of garnishment I was connected with the cashier's office of the Southern Railway Company. I waited on the public, wrote up all the bills that was reported, and the bills to the collectors and the transfer companies, and kept a record of all the solid cars. I was under the control and direction of another employé, J. A. Deels. I did bookkeeping. My duties to charge all the bills that came into Atlanta for Atlanta proper, to write up all the bills that were disposed of, and the bills collected and for the transfer companies. [Kept] a record for all the solid cars of Atlanta proper, and kept a record and charged up the bills and slips against those cars when they were approved. Those were my duties. I kept records in a permanent form,-bookkeeping. My salary was $65 per month. I have been working for the Southern Railway a little over twelve years. I was trackage clerk be

were

My principal business is to keep up with the freight coming into Atlanta; that is, take a record of all the slips of cars received.

*A man at work as a hand in moving cars and coupling cars could fill my position all right, if he had any office experience. A man needs some education, of course, but, aside from that, only experience in railroad work,-office experience. The physical labor I perform is: I record all bills that come in solid cars, and write up all the expense bills that are disposed of, with pen and pencil; and it requires a right smart of muscular force and exertion, sometimes. I do a great deal jumping around and handling books. The greatest physical labor that I do is in handling the books." The court directed the jury to return a verdict finding that the fund sought to be garnished was subject to the process of garnishment, and to this ruling the defendant excepted.

In the case of Oliver v. Hardware Co., 98 Ga. 249, 25 S. E. 403, the court had under consideration the meaning of the word "laborer," as contained in section 1974 of the Code of 1882 (Civ. Code, § 2792), and the conclusion then reached was stated in the following language: "If the contract of employment contemplated that the clerk's services were to consist mainly of work requiring mental skill or business capacity, and involving the exercise of his intellectual faculties, rather than work the doing of which properly would depend upon a mere physical power to perform ordinary manual labor, he would not be a laborer. If, on the other hand, the work which the contract required the clerk to do was, in the main, to be the performance of such labor as that last above indicated, he would be a laborer. In any given case the question whether or not a clerk is entitled, as a laborer, to enforce a summary lien against the property of his employer, must be determined with reference to its own particular facts and circumstances." In McPherson v. Stroup, 100 Ga. 228, 28 S. E. 157, the rule laid down in the Oliver Case for determining when a person was a laborer was held to be the correct rule to be applied to the word "laborer" as used in section 4732 of the Civil Code, which declares that "all journeymen mechanics, and day-laborers, shall be exempt from the process and liabilities of garnishment on their daily, weekly, or monthly wages, whether in the hands of their employérs or others." Following the last-mentioned decision, it is only

necessary to apply the rule therein set forth to the facts of the present case, and when this is done it is clear that the defendant was not a laborer; it being manifest from his own testimony that the services rendered by him consisted mainly of work requiring mental skill and business capacity, rather than the doing of that which would depend mainly upon physical power to perform ordinary manual labor. In the following cases, in addition to those cited in the Oliver Case, supra, the question as to who is a laborer was before this court. Caraker v. Mathews, 25 Ga. 571; Hightower v. Slaton, 54 Ga. 108; Adams v. Goodrich, 55 Ga. 233; Prothro v. Grubbs, 71 Ga. 863; Kyle v. Montgomery, 73 Ga. 337; Bates v. Bates, 74 Ga. 105; Sanner v. Shivers, 76 Ga. 335; Miller v. Dugas, 77 Ga. 386; Cole v. McNeill, 99 Ga. 250, 25 S. E. 402; Hall v. Packing Co., 102 Ga. 586, 29 S. E. 139. We will not now attempt to review or reconcile these decisions. If some of them conflict with what we now rule, it is sufficient to say that in recent years the decisions of this court have been in line with those upon which the present ruling is based, and it has been uniformly held that, if any of the prior decisions are not in exact accord with those, such prior decisions will not be extended beyond their peculiar facts. Judgment affirmed. All the justices concurring.

(108 Ga. 400)

MADDEN v. WRIGHT. (Supreme Court of Georgia. July 25, 1899.) NEW TRIAL-FINDING AGAINST EVIDENCE.

The evidence in the case demanding a find. ing in favor of the defendant on the plea of setoff, and the verdict rendered being, in effect, a finding against such plea, it was error to overrule a motion for a new trial filed by the defendant.

(Syllabus by the Court.)

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by J. S. Wright against M. M. Madden. Judgment for plaintiff. Defendant brings error. Reversed.

Goodyear & Kay, for plaintiff in error. Saml. C. Atkinson, for defendant in error.

COBB, J. Wright, as receiver of the Merchants' & Traders' Bank of Brunswick, brought suit against Mrs. Madden, alleging that she was indebted to him upon an overdrawn account as a depositor of the bank of which he was receiver. The defendant filed a plea denying that she was indebted to the plaintiff, and averring that on the 16th day of December, 1897, there was placed to her credit on the books of the bank the sum of $588.76, and that on the 21st day of December of that year the further sum of $11.10 was placed to her credit, making an aggregate amount of $599.86, no part of which has ever been drawn from the bank either by the defendant or by any one authorized by her.