ton in excess of the market value. At the time of payment, the attention of the agent of the defendant was called to the fact that the price was in excess of what the plaintiffs intended to pay; and the agent stated that the saw scrap steel was worth it, and that he had sold such at 34 cents per pound. The officers and agents of the defendant with whom the plaintiffs dealt had a thorough knowledge of the value of the article which, was the subject-matter of the contract, and the plaintiffs had had no experience in the purchase and sale of the same. The material bought was worth only five to six dollars per ton. Plaintiffs made strenuous efforts to sell it, and to get the market quotations on it, writing letters and telegrams to various parties, all of which appear in the record. The material was packed in 21 barrels, and accepted by plaintiffs as saw scrap steel at the time of the purchase without examination, which would have caused great labor and expense to have examined it piece by piece. Many of the barrels were packed at the top with saw scrap gummings, and after the purchase an examination was made, when it was found that it was not what it was represented to be. Offers to rescind the purchase were made, one of the plaintiffs stating to Boyd the causes that led them to buy the material. These offers were made to Boyd on two separate occasions. On March 3d plaintiffs wrote to defendant a letter, referring to the several conversations which had been had relative to the steel, and stating that they were unable to dispose of the same except at a heavy pecuniary loss, and therefore asked that, as a compromise, the defendants accept the steel and $100, and refund to the plaintiffs $481.77. All the propositions to rescind were declined. A thorough examination of the material showed it to be ordinary scrap iron and steel very much mixed, consisting of saw scrap gummings, saw scrap steel of various kinds, scrap iron, such as pots, hoop iron, hammers, castings, and the like, the market price of which would be four or five dollars per long ton. The efforts to obtain quotations on the steel and sell the same continued until March 16th. The suit was filed on August 18, 1896. At the conclusion of the plaintiffs' evidence, the court, upon motion of the defendant, granted a nonsuit, and to this ruling the plaintiffs excepted.

1. Hoyle, one of the plaintiffs, was examined by interrogatories. Among other questions propounded to him was the following: "If the price paid said defendant was in excess of the market price on said date, state how much in excess, and state how it occurred that the plaintiffs paid three cents per pound for the same." The answer was: "About forty dollars per ton. material was bought under misunderstanding of its real value, caused by misrepresentations of the officers of the Southern Saw Works." The last sentence of the answer

The

was objected to, on the ground that it did not state facts, but stated mere conclusions of the witness. The court sustained the objection, and excluded the testimony, and to this ruling the plaintiffs excepted. It not appearing from the testimony of the witness what the misrepresentations were, or how they induced him to buy the property at a price in excess of its actual value, there was no error in excluding the evidence.

2. The contract between the parties was closed by the letter from the plaintiffs to the defendant, dated January 14, 1896, above referred to. It does not distinctly appear in the record when the material was received by the plaintiffs, but it must have been some time subsequent to the 25th of January, 1896, as on that day the defendant wrote to the plaintiffs, advising them that shipment would be made as early as possible in the following week. After the mate rial was received by the plaintiffs, relying upon the representations of the defendant in regard to its quality, and upon the presumption that it would ship them exactly what had been ordered, they did not examine the material, but delayed such examination for a few days, as they had a right to do. Upon an examination being subsequently made, when it clearly appeared that the articles shipped were essentially different from the articles which had been ordered; the plaintiffs, according to the testimony of one of them, made two distinct propositions offering to return the property shipped to them, and rescind the contract, which were declined; and on March 3, 1896, subsequent to the verbal propositions of rescission, wrote to the defendant, offering as a compromise that the defendant take back the steel, and refund to the plaintiffs the amount of the purchase money, less $100. If the delay of the plaintiffs in examining the articles sold was not unreasonable, and if the offer to rescind was promptly made upon the discovery of the fraud which had been perpetrated upon them, the fact that there had been delay in making the examination would not destroy the plaintiffs' right to rescind. It appearing that the material must have been received by the plaintiffs some time about the 1st of February, and the letter offering the compromise being dated March 3d, it would have been proper to have submitted to the jury the question as to whether, under these facts, the delay in making the examination was for an unreasonable length of time, and whether the offer to rescind was promptly made upon the discovery of the fraud which the plaintiffs claimed had been perpetrated upon them.

3. But it is contended by the defendant that the plaintiffs had waived their right to rescission, because they attempted, after the delivery of the goods to them, to sell the same. It appears from the evidence that the attempt to sell the articles began shortly after the delivery of the goods, and was con

tinued pending the propositions for rescission, and continued after all the propositions for rescission had been declined. That the buyer of personal property is dealing with the same as his own, and in such a way only as an owner would deal with it, might be sufficient for the jury to find that there had been a waiver of the right of rescission, growing out of a fraud perpetrated by the seller at the time of the purchase. The mere fact, however, that the buyer attempts to sell the article, and does not effect a sale, will not alone constitute a waiver of the right to rescind the contract upon the ground of fraud. An offer of the article for sale under the circumstances is subject to explanation by the buyer; and where, as in the present case, the buyer, as soon as informed of the fraud which had been perpetrated upon him, notified the seller that the articles delivered were not of the character ordered, and subsequently offered to rescind, and pending such offer made attempts to obtain market quotations as to the price of the article looking to a sale of the same, these attempts continuing after the offer to rescind had been finally declined, but the articles or no part of the same being actually sold, a jury should have been called upon to determine whether, under the facts and circumstances related, there had been a waiver by the plaintiffs of their right to take advantage of the fraud which had been perpetrated upon them, and rescind the contract.

4. According to the undisputed evidence in this case, an article which was worth $6 per ton was sold to the plaintiffs at the rate of $60 per ton. Inadequacy of consideration' ordinarily will not be sufficient to set aside a contract, but gross inadequacy of consideration is a circumstance indicative of fraud, and that, together with other circumstances, may be sufficient as a ground for rescission. Bishp. Eq. (5th Ed.) § 219. Our Code declares that "inadequacy of price is no ground for rescission of a contract of sale, unless it is so gross as combined with other circumstances to amount to a fraud." Civ. Code, 3549. In the case of Wormack v. Rogers, 9 Ga. 60, it was held that "inadequacy of price, as a general proposition, will not per se be a sufficient ground to set aside a conveyance in a court of equity; yet that circumstance, taken in connection with others of a suspicious nature, may afford such a vehement presumption of fraud as will authorize the court to set it aside." And in the opinion Judge Warner uses this language: "Inadequacy of consideration, as a general proposition, is not, per se, a sufficient ground to set aside this conveyance, although, as remarked by Lord Thurlow, in Gwynne v. Heaton, 1 Brown Ch. 9, the inadequacy of price paid, compared to the value of the property purchased, 'is so gross and manifest that it must be impossible to state it to a man of common sense, without producing an exclamation at the inequality of it.'

While we do not place our judgment exclusively upon the ground of the inadequacy of the consideration, yet that circumstance, taken in connection with the other facts charged in the bill, furnishes the most vehement presumption of fraud."

5. Viewing the record as a whole, we have reached the conclusion that the case should have been submitted to the jury, and that the nonsuit was improper. There was evidence from which the jury could have found that the price agreed to be paid was grossly excessive; that the defendant was thoroughly conversant with all matters relating to the subject-matter of the contract; that the plaintiffs, if not entirely ignorant of the same, were not as thoroughly versed as to the matter which was the subject of the contract as was the defendant; that the article shipped was essentially different from the article ordered; that, within 30 days after the articles were received, they were examined, and found not to correspond with the articles called for by the terms of the contract of sale; that two distinct offers of rescission were made; that attempts had been made before and after and pending the offers of rescission to sell the article, but that no sale had been made. Under this state of facts, it seems to us that the jury should have been allowed to pass upon the questions as to whether a fraud had been perpetrated; whether the plaintiffs had exercised diligence in discovering it; whether they had promptly offered to rescind the contract, and return the article upon this discovery; and whether, by their offers to obtain quotations on the article, and attempts to make a sale of the same, they had waived their right to rescind. Judgment reversed. All the justices concurring.

(105 Ga. 180)

CUTCHER et al. v. CRAWFORD et al., County Com'rs.

(Supreme Court of Georgia. July 23, 1898.)

STATUTES-ENACTMENT EVIDENCE.

1. A minority report, signed by a senator and appearing in the senate journal, which, in effect, states that notice of the introduction of a given bill had not been published, and that the advocates of the bill admitted that no notice had been given that this bill was to be introduced, is not, after its passage, competent evidence to prove that no notice of the introduction of such bill had been published. An act of the general assembly cannot be invalidated in this manner.

2. Nor is a certified copy from the office of the secretary of state of the consolidated return of an election held in a given county upon the question of removing the county site thereof admissible in evidence for the purpose of showing that the general assembly, in acting upon a bill providing for such removal, did not have before it legal evidence showing that such an election had been held, and that two-thirds of the qualified voters thereat voted in favor of a removal of the county site to a particular place.

(Syllabus by the Court.)

Error from superior court, Fannin county; Geo. F. Gober, Judge.

Suit by L. G. Cutcher and others against H. B. Crawford and others, county commissioners. Decree for defendants, and plaintiffs bring error. Affirmed.

Dorsey, Brewster & Howell, Phillips & Brown, Sanders McDaniel, and Hugh M. Dorsey, for plaintiffs in error. Draper & Hull and Clay & Blair, for defendants in er

ror.

LUMPKIN, P. J. On December 13, 1895, the general assembly passed an act to change the county site of Fannin county from Morganton to Blue Ridge. Acts 1895, p. 420. The preamble of this act recites that on the 13th day of August, 1895, an election was held in that county for the purpose of changing the county site, and that "at said election so held two-thirds of the legal votes cast at said election were in favor of the removal of said county site from the town of Morganton to the town of Blue Ridge, in said county." Certain citizens and taxpayers of the county brought an equitable petition against the county commissioners to enjoin them from building a jail for the county in Blue Ridge. This petition was predicated upon two grounds: First, because the above-mentioned act was unconstitutional, for the reason that it was "a local bill, and notice of the intention to introduce said bill, as required by the constitution of the state, was not given nor published in the locality affected by such bill"; and, second, because "less than two-thirds of the votes cast at said election were in favor of removal of said county site, as the consolidated returns of said election showed." The injunction was denied, and the plaintiffs excepted.

1. At the hearing they offered in evidence an official copy of the senate journal of 1895, containing the following: "Mr. Cumming, of the Eighteenth district, member of the special judiciary, submitted the following minority report: Mr. President: The undersigned dissents from the report of the special judiciary committee on house bill No. 730, by Mr. McDaniel, of Fannin, in reference to changing the county site of Fannin county, which was favorable to the passage of the bill, and recommends instead that the bill do not pass, for the reason that in the opinion of the undersigned this is a local bill, and there is no evidence that notice thereof was given as prescribed by the constitution and statutes, but, on the contrary, it was admitted by the advocates of the bill that no notice was given that this bill was to be introduced. Respectfully submitted, [Signed] Bryan Cumming."

This evidence was properly rejected. Its purpose was to show that no notice of the bill to change the county site of Fannin county had been published. We do not

think an act of the general assembly can be invalidated in this manner. At most, the report was nothing more than a statement by Senator Cumming that, in his opinion, this was a local bill, notice of the introduction of which had not been duly given. Surely, it would never do to declare void an act of the legislature upon the strength of anything contained in a minority report which was overridden by that branch of the general assembly to which it was presented. Presumably, the senate, by a majority of twothirds, differed with the distinguished senator from the Eighteenth as to the conclusions expressed in his minority report, and, if this be so, it makes no difference, so far as relates to the present controversy, whether, in point of fact, he was right or wrong. The action of the senate must be accepted as conclusive. The statement, that "it was admitted by the advocates of the bill that no notice was given that this bill was to be introduced," cannot be made a ground for invalidating the act. Courts cannot act upon admissions, no matter by whom made, in passing upon the constitutionality of statutes. See Fullington v. Williams, 98 Ga. 809, 27 S. E. 183, and authorities there cited. Disregarding the recitals of this report, as we are constrained to do, we have nothing from the senate journal showing whether notice was or was not given. This being so, the presumption is that the general assembly did not disregard the constitutional requirements as to publication, if, indeed, these requirements are applicable to a bill of this kind. See 23 Am. & Eng. Enc. Law, 199 et seq.

2. In support of the other ground upon which the petition was founded, the plaintiffs offered in evidence a transcript from the office of the secretary of state of the consolidated return of the election held in Fannin county upon the question of removing the county site. That return purported to show that the vote stood as follows: "For removal to Blue Ridge, received 947; for removal to Mineral Bluff, received 155; against removal, 396." If these figures are correct, it is, of course, obvious that two-thirds of the qualified voters of the county voting at the above-mentioned election did not cast their ballots in favor of the removal of the county site to Blue Ridge; and, if this be true, the provisions of paragraph 4, § 1, art. 11, of the constitution (Civ. Code, § 5927), were not complied with. But the transcript from the office of the secretary of state, even if its introduction'in evidence had been permitted by the court, would not have shown upon what evidence the general assembly acted in passing upon the question whether or not the removal provided for by the act had been duly authorized by the people at the polls. It is not to be presumed that the general assembly would have passed this act un less satisfied in some way that the proposal to remove the county site to Blue Ridge was in the popular election carried by the requisite

constitutional majority. We are not officially Informed from what source the general assembly sought or obtained the evidence relating to this matter upon which it acted. We are not even informed that any certificate at all from the secretary of state, or any transcript of the return on file in his office, was laid before or considered by the general assembly. If such evidence was before it, we are bound to conclude that the same was not satisfactory, and that in some other way, or by some other means, it became convinced that two-thirds of the legal voters voting at the election cast their ballots in favor of the removal of the county site to Blue Ridge. It is not our province to inquire whether or not the general assembly had authority to make an investigation for itself upon this question. It is enough for us to know that the present record does not disclose that the general assembly acted upon illegal or insufficient evidence in reaching the conclusion that the result of the election warranted the enactment of a law changing the county site. Nor would the rejected transcript, even if it had been received in evidence, have shown that the action of the general assembly in passing this law was unconstitutional. Section 394 of the Political Code, which relates to elections of this kind, declares that "the certificate of the secretary of state showing that said election was held and that two-thirds of the qualified vot. ers of said county (as indicated by the tax digest) voted at said election in favor of 'removal,' shall be sufficient evidence of the holding of said election and the number of votes cast." In Wells v. Ragsdale (Ga.) 29 S. E. 165, it was held that, in so far as this section undertook to require the assent of twothirds of the qualified voters of the county, it was violative of the constitution, which only required the assent of two-thirds of those voting at the particular election. Dealing with this section as construed in the case just cited, a certificate from the secretary of state showing that two-thirds of those voting at an election upon the question of removing a county site voted in favor of removal would be sufficient evidence as to the facts therein cited. It will be observed that the secretary of state is not required to furnish the general assembly with a transcript of the return of the election made to him, but it would seem lawful for him to state in a certificate the result of the election; and again, it will be noticed that, while such a certificate is sufficient evidence as to the facts, the law does not say that it shall be the exclusive evidence to be acted upon by the general assembly. We do not know, as already remarked, whether the secretary of state furnished a certificate of any sort to the general assembly in the present instance, or, if he did, what that certificate contained, and we repeat that the transcript offered in evidence and rejected was not relevant or admissible for the purpose of contesting the constitutionality of the law under review. The trial judge committed no error at

the hearing, and properly denied the injunction. Judgment affirmed. All the justices concurring.

(105 Ga. 116)

HAGER V. NATIONAL GERMAN-AMERICAN BANK.

(Supreme Court of Georgia. July 23, 1898.) HUSBAND AND WIFE - CONTRACTS OF MARRIED WOMEN-CONFLICT OF LAWS-BILLS AND NOTES -TRANSFER - NOTICE-BANKS AND BANKINGEVIDENCE-CONJECTURE.

1. A married woman incapacitated by the law of the place of her domicile to bind herself by a promissory note cannot be made liable on such a note because of the fact that, though executed at the place of residence, it was made payable in another jurisdiction, where she would be authorized by the law to make such a contract.

2. Knowledge by one of the officers of a bank, who participated in the acceptance for the bank of a negotiable note before due, of a fact which would put a prudent person upon inquiry as to the power of the maker to execute the paper, is sufficient to charge the bank with notice of a disability, if such existed.

3. Testimony of a witness to the effect that the plaintiff's authorized agent knew the fact of the defendant's marriage "in a general way, no doubt," and that "I expect he got his information through me possibly," was inadmissible, and the court did not err in excluding such testimony as a mere conjecture of the wit

ness.

4. This case was tried upon the theory that. if the plaintiff was an innocent purchaser of the note sued on, the defendant, though a married woman, who labored under a disability to make the contract, would not be allowed to set up such defense. If notice of the defendant's disability was at all necessary to her defense, there was sufficient evidence in the record on the subject to require a submission of the issue to the jury. The court therefore erred in directing a verdict.

(Syllabus by the Court.)

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

Action by the National German-American Bank against Robert Hager and Belle Hager. There was a judgment for plaintiff, and defendant Belle Hager brings error. Reversed. N. J. & T. A. Hammond, for plaintiff in B. F. Abbott, for defendant in error.

error.

COBB, J. The National German-American Bank of St. Paul, Minn., brought suit against Robert Hager and Belle Hager on a promissory note, of which the following is a copy: "$3,731.82. St. Paul, June 4, 1888. On or before one year after date, we promise to pay to the order of F. D. Hager thirty-seven hundred and thirty-one and 82/100 dollars, at National German-American Bank, St. Paul, Minnesota, value received, with interest before and after maturity at the rate of eight per cent. per annum until paid. [Signed] Robert Hager. Belle Hager. [Indorsed] F. D. Hager." Robert Hager made no defense. Belle Hager pleaded that she was not indebted, because at the time the note was executed she was a married woman, residing with her husband, the defend.

ant Robert Hager, in the state of Tennessee, and the note was made in that state, and was not made for her benefit in any way, nor connected with any dealings as to her separate property. She then had no separate estate, has had none since, and is now a resident of the state of Georgia. Under the laws of Tennessee, she had no capacity to make and bind herself by such a note, because of her then married condition and the facts above set forth, of all of which the plaintiff had notice before acquiring the note. At the trial the plaintiff offered in evidence the note sued on, and closed. The defendant Belle Hager then introduced evidence which she claimed tended to establish the truth of her pleas. The court directed the jury to return a verdict in favor of the plaintiff for the amount sued for. To this ruling the defendant Belle Hager excepted.

1. It was contended by the plaintiff that the note purported to have been executed in the state of Minnesota, and that, as it was payable in that state, the validity, force, and effect of the contract was to be determined according to the laws of that state. On the other hand, it was contended by the defendant that the proof showed that the paper was actually executed in the state of Tennessee, of which state the defendant Belle Hager was at the time a resident, and that, therefore, the validity of the contract was to be determined according to the laws of that state. There was no evidence offered to show what was the law of the state of Minnesota in reference to the power of a married woman to bind herself by promissory note. We are therefore to presume that the rules of the common law prevail there. Woodruff v. Saul, 70 Ga. 271; Jones v. Rice, 92 Ga. 236, 18 S. E. 348. At common law a promissory note executed by a married woman was absolutely void. 1 Rand. Com. Paper, 282, and cases cited. A married woman in the state of Tennessee is under the same disability to contract that she was at common law, except so far as that disability has been removed by statute. The only evidence before the court as to what was the law of Tennessee on the subject of the right of a married woman to bind herself by promissory note was a section of the Code of that state, which reads as follows (Mill. & V. Code, 3345): "Whenever a husband has been ascertained to be insane by the verdict of a jury in the manner prescribed by law, his wife may act as a single woman to purchase, receive and hold property, real and personal; to contract and be contracted with; to sue and be sued; to plead and be impleaded; and such property as she may acquire, by purchase or otherwise, while so acting, shall not be taken or made subject to the satisfaction of the debts or contracts of the husband." There was evidence that Belle Hager was a married woman; that she was a mere surety on the note; that she had no separate estate, did not participate in

the consideration of the note, and was not interested in its proceeds. Nothing appearing in the evidence to bring the case within the exception which the statute of Tennessee makes to the common-law rule, the note would be void if the contract is to be controlled by the laws of that state. We have determined the question as to what the law of Tennessee is solely from the statute which was offered in evidence, and the presumption that, except so far as altered by that statute, the common law prevailed there. While no decisions of the supreme court of Tennessee were in evidence, we have examined some of them as we would other authorities, and find that the conclusions reached by that court in reference to the question under consideration are identical with ours. See Sheppard v. Kindle, 3 Humph. 80, 81; Jackson v. Rutledge, 3 Lea, 626, 629; Lowry v. Naff, 4 Cold. 370; McClure v. Harris, 7 Heisk. 379. It would seem, therefore, that, whichever law controls on the question as to the validity of the promissory note, it would be void. The common law being presumed to prevail in Minnesota, nothing to the contrary appearing in the record, the note, as above shown, is absolutely void under the law of that state. The common law being presumed to prevail in Tennessee, except so far as changed by the statute which was in evidence, and the exception in the statute not being broad enough to embrace a case like the one now under consideration, there was no liability on the note.

However, we are of the opinion that the capacity of the defendant to bind herself by a contract of the character under consideration is to be controlled by the laws of the state of Tennessee. She was domiciled in that state, and the note sued on was executed there. If a person having capacity to contract under the laws of the state of his domicile there execute a contract to be performed elsewhere, its validity and effect would generally be governed by the laws of the place where the contract was to be performed. We do not think, however, that the laws of the place of performance of a contract can be called to the aid of a person who is seeking to enforce as a contract something which is absolutely void at the place where it was executed. If the instrument was void as a contract in Tennessee, it is void everywhere. In the case of Martin v. Johnson, 84 Ga. 481, 10 S. E. 1092, it was held that while the general rule is that the rate of interest which a contract is to bear is to be determined by the law of the place where the contract is to be performed, still this rule had no application in cases where the entire contract was illegal at the place of its execution. In the opinion, Justice Blanford cites the case of Andrews v. Pond, 13 Pet. 65, where a similar ruling was made. In that case a draft which was infected with usury was made in the state of New York, and payable in the state of