Callaway and others. Judgment for plaintiff, and defendants bring error. Affirmed.

error.

defendant in error.

BLOODWORTH, J. The original case between these parties was carried to the Supreme Court, and is reported in 139 Ga. 540, 77 S. E. 816. The facts as stated in the decision of that court are as follows:

"A partnership composed of C. and Y. sold their business and property to a partnership composed of C. and P.; the trade being effected by the partner who was the common member of both firms. In part the consideration of the sale was that the purchasing firm assumed all the debts of the selling firm, and that the purchasing firm was to give its note to partner Y., of the selling firm, for a stated amount. The transaction was consummated by the execution of a deed. Subsequently the purchasing firm paid certain items of indebtedness of the selling firm, which were not disclosed to P. at the time of the sale; and partner Y., of the selling firm, collected certain accounts which had been sold to the purchasing firm, and appropriated the proceeds to his own use. The note contracted to be given to Y. by the firm of C. & P. was executed by C. in behalf of the firm of C. & P., and was for a larger sum than that agreed on, and the note was transferred before due to an innocent holder, who sued upon it to judgment, which judgment was paid by P. Two years after the sale P. brought suit against C. and Y., alleging the foregoing facts, and that there are no debts owing by the said firm of [C. & P.], and no credits of said firm, and were none when this suit was filed,' praying for an accounting from C. and Y. as individuals, and for judgment for a stated sum representing the excess of the note given by C. & P. to Y. over that agreed upon, and one-half of the other several amounts referred to above."

interest, and attorney's fees are separately stated, will be held good as to the items for principal and interest, and void as to attorney's fees. Clark v. Lunsford, 143 Ga. 513, 85 S. E. 708; Thompson v. Bobo, 144 Ga. 713, 87 S. 127, 90 S. E. 958; Valdosta, etc., R. Co. v. Citizens' Bank, 14 Ga. App. 329, 80 S. E. 913. 2. APPEAL AND ERROR 936(2)—ATTORNEY'S FEES-PRESUMPTION.

ney's fees thus obtained in the year 1909 should The contention that the judgment for attor be sustained upon a presumption of its validity, for the reason that it does not appear from the agreed statement of facts whether the note sued on was executed before or after the act of 1891 (Acts 1890-91, vol. 1, p. 221), pertaining to the collection of attorney's fees, is not sound, since the agreed statement, by showing that the statutory notice required by the present law had been given and that no denial thereof had been ecuted subsequently to the act of 1891, and that made, clearly indicates that the note was exthe case was tried in the court below on that basis. Moreover, a judgment rendered on a note executed prior to that act would, under the agreed facts, be itself void on its face as to attorney's fees, since the judgment recites that default. See Code 1895, § 3667; Head v. Bridgno defense was filed and that the case was in Franklin County v. Crov, 128 Ga. 459, 57 S. E. es, 67 Ga. 227; Parish v. Parish, 32 Ga. 653;

784.

Error from Superior Court, Hart County; J. N. Worley, Judge.

Action between the Farmers' & Merchants' Bank, for use, etc., and D. C. Alford, receiver, and others. Judgment for the latter, and the former brings error. Affirmed.

W. L. Hodges and A. G. & Julian McCurry. all of Hartwell, for plaintiff in error. J. H. & Parke Skelton, of Hartwell, for defendants in error.

JENKINS, J. Judgment affirmed.

WADE, C. J., and LUKE, J., concur.

[1-4] It is not necessary to add anything further to what is ruled in the headnotes. Judgment affirmed.

(21 Ga. App. 536) BARRETT v. EXCHANGE BANK. (No. 8604.)

Jan. 21, 1918.)

(Syllabus by the Court.)

1. APPEAL AND ERROR 728(1) — ASSIGNMENT OF ERROR-ADMISSION OF EVIDENCE. An assignment of error upon the admission

concur.

(21 Ga. App. 546)

FARMERS' & MERCHANTS' BANK v.

ALFORD et al. (No. 8664.)

made at time of trial, and must also disclose the ground of objection made at the time. Winder v. State, 18 Ga. App. 67, 88 S. E. 1003 (1); Commercial City Bank v. Sullivan, 18 Ga. App. 608, 90 S. E. 173.

2. ADMISSION OF EVIDENCE.

The court did not err in overruling the objection made as to the admissibility of the evi

Jan. 21, 1918.)

(Syllabus by the Court.)

1. JUDGMENT 133-DEFAULT JUDGMENT VALIDITY.

A judgment by default, entered by the superior court as on an unconditional contract in writing, wherein the amounts for principal,

which is made in grounds 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the amendment to the motion for a new trial.

is in whole or in part the debt of Mrs. Barrett. Even if it was the debt of Mrs. Barrett she would not be liable for any portion of it that was the debt of Mr. Barrett. The reason for this is, a married woman cannot be surety for the debt of her husband, or any one else, nor can she assume the debt, or promise to pay the debt of her husband. But a married woman is liable for her own debt, and can contract to pay her own debt, and will be controlled by the facts of the transaction. You will look to the substance, and if the debt is the debt of the wife in truth, she is liable. If it is the debt of the husband, the wife is not liable." This charge is not erroneous for the reason that it was not full or fair, or was limited or prejudicial. The charge of the court is more full than in Ginsberg v. People's Bank of Savannah, 145 Ga. 815, 89 S. E. 1086. If more full and explicit instructions were desired, proper request should have been made. City of Atlanta v. Glenn, 17 Ga. App. 619, 87 S. E. 910 (4). The contentions of both parties, upon a reading of the entire charge, were full and fairly presented. Cooley v. Bergstrom, 3 Ga. App. 496, 60 S. E. 220 (5).

4. RULING ON MOTION FOR NEW TRIAL.

The evidence authorized the verdict, which has the approval of the trial judge. For none of the reasons assigned did the court err in overruling the motion for a new trial. Cooley

v. Bergstrom, 3 Ga. App. 496, 60 S. E. 220 (2). Error from Superior Court, Baldwin County; H. C. Hammond, Judge.

Action by the Exchange Bank against E. H. Barrett. Judgment for plaintiff, and defendant brings error. Affirmed.

Allen & Pottle, of Milledgeville, and Burwell & Fleming, of Sparta, for plaintiff in error. Hines & Vinson, of Milledgeville, and Hardeman, Jones, Park & Johnston and Harry S. Strozier, all of Macon, for defendant in error.

of the stock at the time of the demand and refusal. Bank of Culloden v. Bank of Forsyth, 120 Ga. 575, 48 S. E. 226, 102 Am. St. Rep. 115.

3. BANKS AND BANKING 40-TRANSFER OF STOCK-DEMAND AND REFUSAL.

Such a demand made upon the cashier of a bank, and by him refused under the direction of the president, must be taken as sufficient, especially where the by-laws specifically provide that: "Shares of capital stock may be transferred by indorsement of certificate, and it surrendered to the cashier for cancellation. Wheretransferee." The fact that another by-law proupon a new certificate shall be issued to the vided, "Said bank shall have a lien superior to all other liens upon all stocks in said bank held or owned by any stockholder for any indebtedness due by said stockholder to the said bank, whether said indebtedness be an original undertaking, or as surety, or an indorser or guarantor, and there shall be no assignment or transfer of said stock in said bank except by the consent of the board of directors," could not be taken as rendering such a demand inadequate, although, according to the by-law, such demand must, at least under certain circumstances, be passed upon and approved by the directors. 4. BANKS AND BANKING 42-STOCK-LIEN -KNOWLEDGE.

law of the bank creating a lien in its favor upon While knowledge of the existence of a bythe shares of its capital stock for any indebtedness due it by the owner thereof should be imputed to a stockholder and director taking the same, still, if the bank, through its president and "practically all of the directors," had knowledge of an actual assignment of such stock prior to the creation of the debt in its favor against the original holder, no lien in favor of the bank would attach to such stock as against such prior transferee to secure such subsequently incurred indebtedness. 5. APPEAL AND ERROR 1068(4)—HARMLESS ERROR-CERTIFICATE OF STOCK-REFUSAL TO

MAKE TRANSFER-CHARGE.

In a suit for damages against a bank for its refusal to transfer certificates of stock, a charge by the court that "plaintiffs would not be estopped from any, recovery because the bank may not have had any surplus or undivided profits," and that the question of whether the bank had any surplus or undivided profits would not affect the case except for the purpose of ascertaining the value of the stock, could not, under any view of the law as provided by section 2348 of the Civil Code of 1910, and section 209 of the Penal Code 1910, be held to be reversible error, where the verdict of the jury

under the evidence, was to the effect that the bank in fact held surplus or profits sufficient to discharge the amount of the judgment without infringing upon the capital stock.

Error from Superior Court, Warren County; B. F. Walker, Judge.

Suit by G. A. & W. E. Ray against the Bank of Norwood. Judgment for plaintiffs, and defendant brings error. Affirmed.

L. D. McGregor, of Warrenton, for plaintiff in error. M. L. Felts, of Warrenton, for defendants in error.

JENKINS, J. Judgment affirmed.

WADE, C. J., and LUKE, J., concur.

593, 74 S. E. 61; Cooner v. State, 16 Ga. App. 539, 85 S. E. 688, and cases there cited." Wil

kinson v. State, 18 Ga. App. 330, 89 S. E. 460(2). For these reasons, ground 2 of the amendment to the motion for a new trial cannot be considered by this court.

3. PRINCIPAL AND AGENT 178(4)-NOTICE TO AGENT-STATUTE MATTER CONNECTED WITH HIS AGENCY"-"CREDITOR."

As we see this case there was no error in the charge complained of in ground 3 of the amendment to the motion for a new trial. The effect of the verdict is to establish the fact, so far as this court is concerned, that the notice to the traveling salesman was given as claimed in the plea of the defendant. The only question for determination is, Was the notice sufficient? Section 3163, Civ. Code 1910, is as follows: "The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world. By the retiring of a dormant partner, it must be made known to all who had knowledge of his connection with the firm." As the plaintiff in this case had previously sold goods and given credit to the firm of which the defendant was former

meaning of the word as employed in this section, and it must appear that actual notice was given to the said firm. Bush & Hattaway v. McCarty

Action between T. G. Middleton and N. I. Parker. Judgment for the latter, and the former brings error. Affirmed.

H. Roy Lang, of Waverly, S. C. Townsend, of St. Mary's, and C. B. Conyers, of Brunswick, for plaintiff in error. Jas. R. Thomas, of Jesup, and David S. Atkinson, of Savannah, for defendant in error.

LUKE, J. Judgment affirmed.

WADE, C. J., and JENKINS, J., concur.

(21 Ga. App. 576)

FRANKLIN BUGGY CO. v. CARTER.

(No. 8858.)

Section 3599, Civ. Code 1910, is as follows: with his agency is notice to the principal." "Notice to the agent of any matter connected The question then arises, Is the giving by a former member of a firm to a commercial traveler. "a drummer," whose business is to sell goods for his principal, notice of the dissolution of the firm a "matter connected with his dissolved, and a salesman approaches a former agency ?" We think it is. Where a firm is member thereof and is told he is no longer a member of the firm, we think this is actual notice to the principal; and where the salesman later goes to the other member of the firm, who gives an order for goods and signs the firm's name thereto, we think it is the duty of the salesman to report to his firm the information received from the former member concerning the dissolution, and his failure to do so would not prevent the member of the firm who had retired from successfully pleading "no partnership." especially when sued upon a note given after dissolution, in renewal of the account. See

Jan. 21, 1918.)

(Syllabus by the Court.)

1. ADMISSION OF EVIDENCE.

There was no error in admitting the testimony of E. L. Carter as complained of in the motion for a new trial.

2. APPEAL AND ERROR 302(3)-NEW TRIAL 40 (2)-MOTION FOR NEW TRIAL-SUFFICIENCY OBJECTION BELOW.

"A ground of a motion for a new trial based upon the admission of testimony is altogether vain and futile, unless the ground is complete in itself, and shows what objections to the testimony were urged at the time it was offered or admitted. Register v. State, 10 Ga. App. 623, 74 S. E. 429; Smith v. Smith, 133 Ga. 170, 65 S. E. 414; Cook v. State, 134 Ga. 347, 67 S. E. 812; McCray v. State, 134 Ga. 416, 68 S. E. 62 [20 Ann. Cas. 101]; Georgia Railroad v. Daniel, 135 Ga. 108, 68 S. E. 1024; Jones v. State, 135 Ga. 357, 69 S. E. 527; Johnson v. Ware, 135 Ga. 365, 69 S. E. 481; Glasco v. State, 137 Ga. 336, 73 S. E. 578; Hill v. Chastain, 138 Ga. 750, 75 S. E. 1130. And it must appear that the same objection urged in the motion for a new trial was made upon the trial. Murphy v. Creamer, 10 Ga. App.

exactly like the instant one is that of Ach v. Barnes, 107 Ky. 219, 53 S. W. 293, the headnote of which is as follows: "Notice to plaintiff's traveling salesman that defendant had withdrawn from a firm to which the salesman

sold goods for plaintiff was notice to plaintiff, so as to relieve defendant from liability for the price of the goods sold."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Creditor.]

4. NEW TRIAL 150(4)-NEWLY DISCOVERED

EVIDENCE-AFFIDAVIT-Diligence,

The alleged newly discovered evidence cannot be considered, for it is not made to appear "by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence."

5. REFUSAL OF NEW TRIAL.

There was evidence to support the verdict, and no error was committed when a new trial was refused.

Error from Superior Court, Stewart County; Z. A. Littlejohn, Judge.

Action by the Franklin Buggy Company

against E. L. Carter. Judgment for defendant, and plaintiff brings error. Affirmed.

T. T. James, of Lumpkin, for plaintiff in error. G. Y. Harrell, of Lumpkin, for defendant in error.

BLOODWORTH, J. Judgment affirmed.

A. S. Anderson, of Millen, for plaintiffs in error. Brinson & Hatcher, of Waynesboro, for defendant in error.

JENKINS, J. Judgment affirmed.

WADE, C. J., and LUKE, J., concur.

(21 Ga. App. 665)

cur.

(21 Ga. App. 617)

PROCTOR et al. v. F. S. ROYSTER GUANO CO. (No. 8845.)

(Court of Appeals of Georgia, Division No. 1. Jan. 22, 1918.)

(Syllabus by the Court.)

1. BLANK INDORSEMENTS-EXPLANATION.

"Blank indorsements of negotiable paper may always be explained between the parties themselves, or those taking with notice of dishonor or of the actual facts of such indorsements." Civ. Code 1910, § 5796.

2. EVIDENCE 423(6) PAROL EVIDENCE BLANK INDORSEMENTS-EXPLANATION. Under the provisions of the Code section quoted above, not only is it permissible for a technical indorser thus to show by parol that such indorsement was made solely for the purpose of passing title to the instrument (Bryan v. Windsor, 99 Ga. 176, 25 S. E. 268), but the right to explain by parol the real nature and intent of the contract as evidenced by a blank indorsement applies also to those whose indorsement is not essential to the negotiation of the note, and who, therefore, are not technical indorsers. Atkinson v. Bennet, 103 Ga. 508, 30 S. E. 599; Saussy & Huxford v. Weeks, 122 Ga. 70, 49 S. E. 809.

3. BILLS AND NOTES 473-BLANK INDORSEMENT-DEFENSES.

In a suit by the payee of a promissory note signed in the name of a corporation as maker, a plea by certain individuals who had signed their names in blank upon the back of the note, to the effect that their names were so placed upon the instrument "only for the purpose of perfecting title and passing title, and upon the distinct understanding that [they] were not to be held liable thereon in any way," does not set up a good defense. Since the perfecting and passing of the title to the note could in no way be subserved by such an indorsement, the plea is not valid as going to show why the note was signed for that purpose without incurring liability; and, therefore, since no bona fide reason is shown as to why it was signed without liability being intended, the mere unexplained denial of all liability does not amount to an effort to explain the true character and intent of the contract, but is merely an effort to avoid

(Court of Appeals of Georgia, Division No. 2. Jan. 22, 1918.)

(Syllabus by the Court.)

1. AMENDMENT TO BILL OF EXCEPTIONS-DISMISSAL OF-WRIT OF ERROR.

The amendment to the bill of exceptions is allowed, and the motion to dismiss the writ of error is denied.

2. CONTRACTS

346(2)-DEFENSES-PARTIAL

FAILURE OF CONSIDERATION-PROOF.

Where the defense to a suit is based solely upon a partial failure of consideration, before a verdict can legally be rendered giving the defendant the benefit of such partial failure it is incumbent upon the defendant to show the extent to which the consideration failed. The jury must have sufficient data, presented by the evidence, upon which to base a verdict in such a case. Grier v. Enterprise Stone Co., 126 Ga. 17, 54 S. E. 806; Spence Drug Co. v. American Soda Fountain Co., 11 Ga. App. 473, 477, 75 S. E. 817. Under application of this ruling to the facts of the instant case, the trial court erred in overruling the motion for a new trial, and the judge of the superior court did not err in sustaining the certiorari and in ordering a new trial.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action between the J. E. Hunnicutt Company and E. K. Kane. Judgment for the former, motion for new trial denied, certiorari sustained, and new trial ordered, and the former brings error. Affirmed.

W. B. Hartsfield and James J. Slaton, both of Atlanta, for plaintiff in error. Geo. B. Rush, of Atlanta, for defendant in error.

Jan. 21, 1918.)

ror.

1.

(Syllabus by the Court.)

MASTER AND SERVANT 230(2)-CONTRIBUTORY NEGLIGENCE-CHILD-STATUTE.

A servant who is over 14 years of age is presumptively chargeable with the same degree of diligence for his own safety as an adult en3474; Central R. & B. Co. v. Phillips, 91 Ga. gaged in the same work. Civ. Code 1910, § 526, 17 S. E. 952 (2); Evans v. Josephine Mills, 119 Ga. 448, 46 S. E. 674 (6).