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clusive privilege, immunity, or franchise whatever." In our opinion, the act of 1895 is not a private or special law, within the meaning of that section. It is a general law, in terms applicable to all persons within the designated class, viz., those having no heirs within the United States dependent on such estate for support; and it does not grant or purport to grant to an individual, association, or corporation any special or exclusive privilege, immunity, or franchise. Section 18, art. 6, provides: "No law shall be passed granting to any citizen, class of citizens, or corporation, privileges or inumunities which upon the same terms shall not equally belong to all citizens or corporations." The act of 1895 does not grant or purport to grant to any class of citizens privileges or immunities which, upon the same terms. do not equally belong to all citizens.

It is certainly competent for the legislature to provide that certain insane persons, riz. those possessing estates with no heirs depending upon said estates for support, should be responsible for the expenses incurred in their care and treatment at the hospital for the insane, while another class of insane persons, viz. those having heirs dependent upon said estates for support, should be relieved from that liability. This court has often said that it will only declare an act of the legislature unconstitutional when it is clearly in conflict with some provision of the state or national Constitution. If the question is in any manner doubtful, the doubt will be resolved in favor of the legislative action. The legislature, in the act referred to, divides insane persons, for the purposes of the act, into two classes; and it provides that persons belonging to the class having no dependent heirs shall be liable for their support at the hospital for the insane, and leaves in the second class insane persons having dependent heirs, who are not made so liable. It will be observed that all persons belonging to the first class are made liable. No discrimination is made as to any person in that class. Mr. Cooley, in his work on Constitutional Limitations, UVs: "Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application. They may embrace many subjects, or one, and they may extend to all eitizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The authority that legislates for the state at large must determine whether particular rules shall extend to the whole state and all its citizens, or, on the other hand, to a subdivision of the state, or a single class of its citizens, only. If the laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply, and they are then public in character; and of their propriety and policy the legislature must judge." Cooley, Const. Lim. 5th ed. pp. 482, 483 [6th ed.] 479481. The law in question, therefore, making no discrimination in favor of any person

within the class designated, is clearly within the legislative power. The legislature is constantly passing acts applicable to particular classes of persons, such as minors, married women, indigent and infirm persons having no means of support, and insane persons. Will it be claimed that these laws are unconstitutional because all of the citizens of the state are not included, or because the classes are subdivided for proper reasons? Can it be said that such laws grant to citizens, or a class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens? We apprehend not. As we have seen, the law of 1895 makes all insane persons having no heirs dependent upon their estates equally liable to counties which may contribute to their support as inmates of the hospital for the insane. It is true that it does not make all insane persons thus provided for liable, but this fact constitutes no objection to the law that could not be made to the law providing that minors over fourteen may nominate their own guardian, while minors under that age are denied that privilege (Comp. Laws, § 5984), or the law providing that counties shall relieve and support all poor and indigent persons when they shall stand in need thereof, while all other citizens must provide for their own support. Comp. Laws, § 2143. Here it will be noticed that the class of indigent persons, only, is provided for, while other citizens are not entitled to be supported at the expense of the county. In the case at bar it might as consistently be claimed that privileges and immunities were granted to insane persons not granted to other citizens of the state, and that the law providing for their support is unconstitutional.

It is hardly necessary to pursue this discussion further, as the power of the legislature to provide laws applicable to particular classes of citizens is too well established to require the citation of authorities. If the law had provided that certain insane persons, not having heirs dependent upon their estates for support, should be liable, while other insane persons similarly situated should not be liable, of course the law would be objectionable, as conflicting with the provisions of the Constitution, as there would be privileges and immunities granted to certain citizens which were denied to others. similarly situated. But in this act the distinction between the two classes is clearly and wisely drawn. The legislature has very properly said that insane persons having no heirs within the United States dependent upon their estates for support should be liable to reimburse the counties for moneys expended for their support and maintenance and, it is said, on the other hand, that insane persons having heirs dependent upon their estates for support shall not be liable. Such a law is clearly within the legislative power. We are unable to discover any provision in the Constitution that inhibits such legislation, and it certainly seems just and proper that a single man, having an estate valued at $7,000, should be required to reimburse the county for the expenses incurred

in his support as an insane patient, while it | opinion that the learned circuit court took might, on the other hand, be a great hard- an erroneous view of the law of 1895, and ship to require one having a wife and depend- that it should have overruled the demurrer ent children to so contribute to his support to the complaint. in his unfortunate condition. We are of the

The order of the Circuit Court is reversed.

GEORGIA SUPREME COURT.

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court:

| Mary Carter. She owned them, and I had the goods in my charge as her agent." There being no further evidence for the plaintiff, the court, upon motion of defendant's counsel, granted a nonsuit on the ground that the goods alleged to have been damaged did not belong to the plaintiff, but to his wife. To this judgment the plaintiff excepted. The question, therefore, presented for decision is whether or not the plaintiff could maintain the action in his own name. It is an elementary principle that the action on a contract must be brought in the name of the party in whom the legal interest is vested, and that the legal interest in a contract is

in the person to whom the promise is made.
and from whom the consideration passes.
15 Enc. Pl. & Pr. 499, 500; Civil Code, §
4939. In the present case the plaintiff, al-
though in reality he occupied the relation of
agent of his wife to take charge of the good-
shipped, was named both as the consignor
and consignee in the contract of shipment.

with no reference whatever therein to the
fact of his agency. Under such circum-
stances the action could be maintained in his
own name. Generally, it is true, an agent
has no right of action upon a contract made
with his principal, but he has a right of ac-
tion in his own name "where the contract is
made with the agent in his individual name,
though his agency be known." Civil Code.
83037 (3). Certainly, the action could be
maintained where the fact of agency and
by the agent. In such a case the agent is.
the name of the principal are both concealed
in contemplation of law, the real contract-
ing party, to whom the promise of the other
party was made, and who is entitled to en-
Agency, 9th ed. § 393. But the plaintin
force it. Mechem, Agency. § 755; Story.
contract was made with him, and he is pri-
was the consignor of the goods shipped. The
The carrier dealt with him as the owner of
marily liable for the transportation charges.
the goods, and could not, in an action by the
title unless the title of the real owner was
plaintiff to recover the goods, dispute the
sought to be enforced against the carrier.
In the case of Haas
Civil Code, § 2286.
V. Kansas City, Ft. S. & G. R. Co.
E. 629, suit was
upon a contract

Carter sued the railroad company for damages resulting from the breach of a contract of shipment which the defendant had entered into with the plaintiff. On the trial the plaintiff introduced in evidence a receipt signed by an agent of the defendant, of which the following is a copy: "Received from W. R. Carter the following articles in apparent good order, contents and value unknown, as per coupon attached, to be transported to W. R. Carter, McRae, Ga.,"-setting forth the articles shipped. The plaintiff testified that the distance from the point from which the goods were shipped to their destination was 30 miles; that they should have been delivered in twenty-four hours, which was reasonable time; that the goods were new, and in good condition, when delivered to the defendant; that they were not delivered by it at the point to which they were shipped until twenty-five days had elapsed from the time they were delivered to the defendant; and that, when delivered, some of the goods were in such a damaged condition that they were rendered worthless, and all of them 81 Ga. 792, 7 S. were more or less damaged. Just before brought by leaving the witness stand, the plaintiff stated: "The goods belonged to my wife,

*Headnote by COBB, J.

a

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Haas

or

bill of lading made by the defendant with one Ayres. It was held that, "the bill of lading for the flour not having been indorsed to plaintiff by the party in whose favor it was issued, the former could not maintain an aetion against the company upon it." It appears from the record in that case that Ayres was the consignor, and Haas the con

signee. The present chief justice says in the opinion: "The record does not show that this bill of lading was assigned or indorsed by Ayres to Haas. This being true, Haas, under our Code, could not bring suit on the contract made between the railroad company and Ayres."

The courts of both this country and England are now, with a few exceptions, all agreed that, where the consignor makes the contract of shipment with the carrier, he may bring an action for loss of or injury to the consignment, although he may not be the actual owner of the property. In such a case the privity of contract between the carrier and the consignor is a sufficient foundation on which to base the action. It is also well settled by the authorities that where a consignor, who is himself not the real owner, recovers damages from the carrier for a breach of the contract of carriage, the recovery inures to the benefit of the owner, and the consignor is regarded simply as the trustee of an express trust. It would seem to follow necessarily from this that a recovery by the consignor for a breach of the contract would be a bar to an action by the owner in tort for the injury done him. The English courts have, so far as we are aware, uniformly adhered to the rule that an action for a breach of a contract of carriage made with the consignor may be maintained by him. In Davis v. James, 5 Burr. 2680, a decision rendered in 1770, it was held that "action lies against carrier in name of consignor, who agreed with him and was to pay him." The question was squarely made in that case, and the court reached the conclusion above indicated. Lord Mansfield said, in the opinion which he rendered in that case: "This is an action upon the agreement between the plaintiffs and the carrier. The plaintiffs were to pay him. Therefore the action is properly brought by the persons who agreed with him and were to pay him." This decision, as above stated, was uniformly adhered to by the English courts, and, there being in this state no statute law to conflict with the rule therein announced, it became, by force of our adopting statute, the law of this state. In Moore v. Wilson, 1 T. R. 659, the doctrine announced in the case just referred to was reaffirmed, and the court held further that it was immaterial whether the hire was to be paid by the consignor or the consignee, as the former was, in law, liable to the carrier for the hire. In Joseph v. Knor, 3 Campb. 320, it was held that an action by the consignor would lie. The opinion was rendered by Lord Ellenborough, who said: "I am of opinion that this action well lies. There is a privity of contract established between these parties by means of the bill of lading. That states that the goods were shipped by the plaintiffs, and that the freight for them was paid by the plaintiffs in London. To the plaintiffs, therefore, from whom the consideration moves, and to whom the promise is made, the defendant is liable for the nondelivery of the goods. After such a bill of lading has been

signed by his agent, he cannot say to the shipper they have no interest in the goods, and are not damnified by his breach of contract. I think the plaintiffs are entitled to recover the value of the goods, and they will hold the sum recovered as trustees for the real owner." In Dunlop v. Lambert, 6 Clark & F. 600, the House of Lords held: "Though, generally speaking, where there is a delivery to a carrier to deliver to a consignee, the latter is the proper person to bring the action against the carrier, yet, if the consignor make a special contract with the carrier, such contract supersedes the necessity of showing the ownership in the goods, and the consignor may maintain the action, though the goods may be the property of the consignee." The "special contract" referred to in the above quotation was simply a bill of lading declaring that the goods were to be delivered to Matthew Robson, "freight for the said goods being paid by William Dunlop & Co.," the plaintiffs. The case of Dawes v. Peck, 8 T. R. 330, is sometimes cited as authority for a contrary rule. That case is thus commented upon and distinguished by Judge Turley in the case of Carter v. Graves, 9 Yerg. 446, 450: In that case "an action on the case was brought by a consignor against a common carrier for not safely carrying, according to his undertaking, in consideration of a certain hire and reward to be therefor paid, two casks of gin from London to one Thomas Aday at Hillmorton, in Warwickshire. The court determined that, if a consignor of goods deliver them to a particular carrier by the order of a consignee, and they be afterwards lost, the consignor cannot maintain an action against the carrier, and that the action can only be maintained by the consignee. In this case there is no contract with the consignor by the carrier for the delivery of the articles; the freight is not paid by him; the property is delivered to a carrier specified by the consignee; and, more than all, the court, in the opinions delivered, refer to the cases of Davis v. James, 5 Burr. 2680, and Moore v. Wilson, 1 T. R. 659, and recognize them as sound authority." A leading American case is Blanchard v. Page, 8 Gray, 281, where, after an elaborate review of the authorities, Chief Justice Shaw reached the conclusion that "the shipper named in a bill of lading may sue the carrier for an injury to the goods, although he has no property, general or special, therein." The reasoning upon which this ruling is based seems to be unanswerable, and the decision ought to be accepted as decisive of this question. It must not be lost sight of that the present action was based upon a contract. If the action had been based upon the tort of the carrier in delivering the goods in a damaged condition, then a question entirely different from that involved in the present case would be raised. In such a case it would seem that the right of action is to recover for the injury to the interest or right in the property, and the shipper, if not the owner, could not bring such an action. The distinction between such a case and one like the present

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was pointed out in Finn v. Western R. Corp. 112 Mass. 524, 17 Am. Rep. 128, where it was ruled, in effect, that, in order to authorize an action by the consignor who is not the owner of the goods, there need be no express contract between him and the carrier, but that the action may be maintained upon the contract implied by the delivery and receipt of the goods for carriage, if no action ex delicto has been begun by the consignee; and that the consignor will hold the sum recovered in trust for the consignee. In Carter v. Graves, 9 Yerg. 446, it was held: "A consignor cannot maintain an action on the case for the loss or injury of the property consigned without showing that he has a special or general right thereto, but that he may in all cases maintain an action of assumpsit upon a contract to deliver the property safely, he having made the same, and paid or become bound for, the consideration." In Hooper v. Chicago & N. W. R. Co. 27 Wis. 81, 91, 9 Am. Rep. 439, it was said: "The shipper is a party in interest to the contract, and it does not lie with the carrier who made the contract with him to say, upon a breach of it, that he is not entitled to recover the damages, unless it be shown that the consignee objects; for, without that, it will be presumed that the action was commenced and is prosecuted with the knowledge and consent of the consignee, and for his benefit. The consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, like a factor or other mercantile agent who contracts in his own name on behalf of his principal." Another well-considered case, in which an elaborate review of the authorities is made, is Southern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. Rep. 4. In Great Western R. Co. v. McComas, 33 Ill. 186, it was ruled: "Where goods are shipped upon a railroad for transportation, the consignor may sue for their nondelivery, though he be but a bailee. He has such a special property in the goods as to give him a right of action. So may the real owner sue, and so may the consignee." It was ruled further in that case that, whichever of these three first obtains damages, it will be in full satisfaction of the claims of the others.

We have not undertaken to collate here all of the cases bearing upon this question. Many of them, perhaps nearly all, are cited in the decisions above referred to. The following also support the ruling made in the present case: Cobb v. Illinois C. R. Co. 38 Iowa, 601 (syl. point 8); Dows v. Cobb, 12 Barb. 310; Harvey v. Terre Haute & I. R. Co. 74 Mo. 539; Atchison v. Chicago, R. I. & P. R. Co. 80 Mo. 213; Moore v. Sheridine, 2 Harr. & McH. 453; Southern Exp. Co. v. Caperton, 44 Ala. 101; Missouri P. R. Co. ▼. Smith, 84 Tex. 348, 19 S. W. 509; Missouri P. R. Co. v. Scott, 4 Tex. Civ. App. 76, 26 S. W. 239; Ohio & M. R. Co. v. Emrich, 24 Ill. App. 245; Northern Line Packet Co. v. Shearer, 61 Ill. 263; Brill v. Grand Trunk R. Co. 20 U. C. C. P. 440; Moran v. Portland Steam Packet Co. 35 Me. 55; Cantwell v. Pacific Exp. Co. 58 Ark. 487, 25 S. W. 503;

1

Goodwyn v. Douglas, Cheves, L. 174; 3 Enc. Pl. & Pr. 826; Hutchinson, Carr. §§ 724 et seq.; Parks v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 30 S. W. 708; Galveston, H. & S. A. R. Co. v. Barnett (Tex. Civ. App.) 26 S. W. 782; Davis v. Jacksonville Southeastern Line, 126 Mo. 69, 28 S. W. 965. There are a few cases which seem to hold that the sole right of action against a carrier for loss of or injury to goods is in the consignee, notwithstanding a contract of carriage was made with the consignor. It would not be profitable to attempt to reconcile these decisions. Some of them, however, will be found upon examination to refer to actions ex delicto brought by the consignee as the real owner of the goods. Those which do hold that the consignor cannot maintain an action for a breach of a contract made by the carrier with him are, as has been seen above, against both principle and the great weight of authority, and ought to be disregarded. So far, however, as the present case is concerned, the plaintiff was both consignor and consignee, and the real owner was a party entirely unknown in the transaction. We prefer, however, to place our decision upon the ground that, as the plaintiff was the agent of the real owner of the goods, and had charge of the same, he was authorized to enter into a contract of shipment with the carrier; and that, having entered into this contract, the legal interest therein was vested in him, and he could sue for its breach. The decision of this court in Lockhart v. Western & A. R. Co. 73 Ga. 472, does not conflict with anything ruled in the present case. The plaintiff in that case had no contract with the carrier, and had no interest whatever in the property.

It was contended by counsel for defendant in error that the plaintiff in the present action failed to make out a prima facie case of liability on the part of the defendant for injury to the goods, and that, this being so, even if the court erred in placing his decision granting a nonsuit on the ground indicated in the order, the judgment should be affirmed, as the right result was reached, though the wrong reason may have been given for it. We think the plaintiff did make out a prima facie case of liability, and consequently the judgment of nonsuit was, in any view of the case, erroneous, and a trial upon the merits should be had.

Judgment reversed.

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ney a communication or statement in | tate, and acquired by reason of his employthe presence of the opposite party as to the ment as such. transaction in hand, it is not confidential or privileged, and the attorney is a competent trial of a case arising out of such transaction between the administrator of the client and the other party.

witness to testify respecting the same on the

2. Parol evidence tending to show that a conveyance of land was really made in extinguishment of a debt, and that the grantor, for reasons satisfactory to himself, desired that the grantee should pay over to him, on delivery of the conveyance, the amount of money specified as the consideration, with the promise that, if this was done, he would repay said sum to the grantee, does not have the effect of varying any of the terms or conditions of the deed. Such evidence goes alone to the point as to what was the true consideration of the instrument, concerning which inquiry always can be made. The court erred in granting a nonsuit.

(June 6, 1900.)

ERCount to the Court
RROR to the Superior Court for Jasper

defendants in an action brought to recover
money alleged to be due from defendants' in-
testate to plaintiff. Reversed.

The facts are stated in the opinion.
Messrs. F. Jordan & Son and George &
George, for plaintiff in error:

On the competency of Maj. J. C. Key to testify as to the consideration of the deed and the contract between Minter and Stone, as detailed by Minter, when the deed was written, see

Corbett v. Gilbert, 24 Ga. 459; Collins v. Johnson, 16 Ga. 458; McDougald v. Lane, 18 Ga. 444; Burnside v. Terry, 51 Ga. 188; Brown v. Matthews, 79 Ga. 8, 4 S. E. 13.

On Maj. Key's competency to testify to

conversation between Minter and Stone as to

their contract, in his presence before the deed was written, and before he was employed as attorney to write it, see

Civil Code, § 5271; Skellie v. James, 81 Ga. 419, 8 S. E. 607; Thompson v. Wilson, 29 Ga. 539; Sharman v. Morton, 31 Ga. 34. If there is any evidence whatever, nonsuit is improper.

Tison v. Yawn, 15 Ga. 491, 60 Am. Dec. 708; Dyson v. Beckam, 35 Ga. 132; Augusta Amateur Musical Club v. Cotton States Mechanics' & Agri. Fair Asso. 50 Ga. 436; East & West R. Co. of Alabama v. Sims, 80 Ga. 807, 6 S. E. 595; McConnell v. East Point Land Co. 100 Ga. 133, 28 S. E. 80; Barnett v. Terry, 42 Ga. 283; Woodruff v. Alabama Great Southern R. Co. 75 Ga. 47; Frank v. Atlanta Street R. Co. 72 Ga. 338.

Consideration is always open to inquiry. Butts v. Cuthbertson, 6 Ga. 168; Knight v. Knight, 28 Ga. 165; Finney v. Cadwallader, 55 Ga. 78; Civil Code, § 3599; Parrott v. Baker, 82 Ga. 373, 9 S. E. 1068.

Mr. J. D. Kilpatrick, for defendants in

error:

The court did not err in repelling the evidence of John C. Key. The evidence offered was acquired by the witness while acting as the attorney at law for defendants' intes

Civil Code, 5198 (2), 5199, 5271, Acts 1887, p. 30; Raefle v. Moore, 58 Ga. 94; Stephens v. Mattox, 37 Ga. 289; Riley v. Johnston, 13 Ga. 260; Neal v. Patten, 47 Ga. 74; Martin v. Anderson, 21 Ga. 301; Merchants' Bunk v. Rawls, 21 Ga. 289; Osborn v. Herron, 28 Ga. 315; Causey v. Wiley, 27 Ga. 444: Dover v. Harrell, 58 Ga. 572; Freeman v. Brewster, 93 Ga. 649, 21 S. E. 165; Peck v. Boone, 90 Ga. 767, 17 S. E. 66.

The court did not err in granting nonsuit. Baker v. Dobbins, 87 Ga. 545, 13 S. E. 524; Southwestern R. Co. v. Millian, 62 Ga. 607; Ramsey v. Cole, 84 Ga. 147, 10 S. E. 598; Shomo v. Ransom, 92 Ga. 97, 18 S. E. 534: Bedell v. Richmond & D. R. Co. 94 Ga. 23, 20 S. E. 262; Pryor v. West, 72 Ga. 140; Pace v. Harris, 97 Ga. 357, 24 S. E. 445.

The evidence does not show a contract.
Civil Code, § 3637; 5 Lawson, Rights,
Rem. & Pr. 2223; Crawley v. Blackman, 81
Ga. 748, 15 S. E. 826.
Ga. 775, 8 S. E. 533; Stix v. Roulston, 88

Little, J., delivered the opinion of the

court:

Stone instituted an action against Minter, of the estate of William S. Minter, making administratrix, and Minter, administrator, intestate died on July 5, 1897, and at the substantially the following case: That the time of his death was indebted to petitioner in the principal sum of $2,300, besides interest. That said indebtedness arose in the following manner: In June, 1887, the inteslv, was residing on his farm near where petitate, who was aged, infirm, and had no famitioner lives; that at the urgent request of the house of petitioner, with the underthe intestate, he was received as a boarder at the wife of petitioner satisfactory compensastanding and agreement that he would pay to tion for his board, no specific sum being the house of petitioner, the intestate, in agreed on that, in addition to boarding at March, 1888, became a lodger at his house, and continued to board and lodge, under the agreement aforesaid, from said respective dates to the time of his death. That, after he thus became an inmate of petitioner's home, the intestate repeatedly declared that he intended to convey a part of his estate to the wife and children of petitioner for the kind treatment he had received, and in payment for the board and lodging furnished him. That subsequently, the intestate not having performed any of said promises, petitioner insisted on a settlement of his claim for board. It was then mutually agreed that the sum of $2,800 would be a fair and reasonable compensation for the board and attention which the intestate had received, which sum the intestate proposed to pay by conveying to petitioner the title to 400 acres of land which adjoined the premises of petitioner. This proposition was accepted. It was then further proposed by the intestate that, inasmuch as his relatives would be dissatisfied with him, and cause a disturbance, if the land was conveyed in payment of the

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