[Ed. Note.-For other cases, see Cancellation of Instruments, Cent. Dig. §§ 1, 13; Dec. Dig. $8 4, 13:* Quieting Title, Cent. Dig. §§ 14-33; Dec. Dig. § 7.*] Error from Superior Court, Fulton County; J. T. Pendleton, Judge. to a suit upon it as by equitable petition, or why | tempted probate was void. The papers were equitable relief was necessary. not entitled under the law to be recorded in the clerk's office, and the clerk had no legal authority to record them. The plaintiff has no other course to protect his rights than the one here pursued. Plaintiff prayed that the papers herein set out be canceled and delivered up, that the clerk of the superior court be required to expunge them from the records, that the attempted assignment by Sims to Wimpy be declared null and void, and for process. The defendants demurred to the petition. The judge sustained the demurrer, and dismissed the petition, and the plaintiff excepted. Suit by Carl Witt against Roff Sims and others. Decree for defendants, and plaintiff brings error. Affirmed. Evins & Spence and F. E. Radensleben, all C. T. & of Atlanta, for plaintiff in error. L. C. Hopkins, of Atlanta, for defendants in error. LUMPKIN, J. (after stating the facts as above). [1, 2] The paper involved in this case was plainly not one which the clerk of the superior court was authorized to record on the deed books of the county. It was a mere agreement between a landowner and a real estate broker in regard to giving the latter the right to sell the land, or paying him a commission, if the land should be sold by him, the owner, or any other person. It did not purport to convey any title, interest, or easement in the land, or to create any lien upon it. If it had been oth erly attested or probated for record. What is said of the paper itself applies with double force to the entry upon it purporting to transfer an interest in the contract to another. Carl Witt brought an equitable petition against Roff Sims, W. E. Wimpy, and the clerk of the superior court. He alleged in substance as follows: On the 2d day of January, 1909, the plaintiff entered into a writing with Roff Sims, which was as follows: "Atlanta, Ga., January 2, 1909. I, having this day purchased through Roff Sims the vacant lot in Atlanta, Georgia, from J. F. Leary, situated on the northeast corner of Peachtree street and East Harris, being one hundred (100) feet on Peachtree street by one hundred and fifty-four (154) feet deep. The said Roff Sims, in making the purchase for me, was obliged to reduce his commission on the sale, and in consideration I give to him the exclusive sale of the property as long as I own it, and agree to pay him the regular real estate commission upon it when it is sold, either by himself, myself, or any other person. It is hereby agreed that the real estate commission be fixed for this sale as 22 per cent. on the dollar." This writing was entered into after the plain-erwise a recordable paper, it was not proptiff had purchased the property therein described, which property is owned by him; he having purchased it from J. F. Leary. It was given for a past consideration, and is therefore without consideration, and is null and void. It casts a cloud over the plaintiff's title to the property, and subjects him to annoyance and liability. On or about December 30, 1909, Sims attempted to transfer to W. E. Wimpy a half interest in the writing above set out, such assignment being as follows: "Atlanta, Ga., Dec. 30, 1909. ($750.) For and in consideration of the sum of seven hundred and fifty dollars, I hereby transfer and assign to W. E. Wimpy, one-half interest in the above contract, the receipt of which is hereby acknowledged." On February 25, 1911, Roff Sims attempted to probate the writing first above set out, and for the purpose of having it recorded on the records of the clerk of the superior court made an affidavit before a notary public of the county, stating that he saw Carl Witt "sign the above obligation, dated January 2, 1909, on said date." On or about February 25, 1911, Sims or Wimpy filed the writings above referred to with the clerk of the superior court, with request that they be recorded. The clerk recorded them on March 2, 1911, in a book kept for recording deeds. This writing could not be assigned, and any attempt to assign an interest in it was void. The at It was conceded by counse. for the defendants that the paper was not recordable, and ought not to have been entered on the record of deeds. But it was argued that, if a clerk should cumber the books for the recording of deeds by entering on them papers which should not be recorded, in order to obtain fees, the county authorities would have the right to prevent such a use of the county's property. Perhaps they would. But the registration laws are for the benefit of the public, and the county authorities have no power to change them; nor is a property owner who may be damaged by an unlawful record without remedy, upon a proper case made. In New York there is a statute touching the cancellation of any recorded instrument relating to realty not entitled to record by law. In Georgia there is no express statute on the subject. Under some circumstances, doubtless, an entry of cancellation might be required by a court hav ing equitable jurisdiction. [3, 4] But in this case the allegations make no case for cancellation either of the instrument or the record of it. They do not bring the case within Civil Code, § 5465, touching proceedings quia timet generally; nor do they show any cloud upon the title of the plaintiff, giving a right of cancellation under Civil Code, §§ 5466, 5468. The cases of Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S. E. 663, and Hairalson v. Carson, 111 Ga. 57, 36 S. E. 319, were relied on. While much that is said in the decisions in those cases is still the law, and a part of that in the one first cited has been codified in Civil Code, § 5468, it may be well to note, in connection with this, that the rule that, where the invalidity of an instrument appears on its face, this alone will render cancellation unnecessary, has been abrogated by statute. Civil Code, § 5466. [5] The bare allegation that a promise to give a broker the exclusive privilege of selling property, or to pay him commissions, if it should be sold by another, was made without present consideration, does not make a case for resort to a court having equitable jurisdiction, for cancellation. Nor do the superadded allegations of conclusions that the paper is iniquitous and the plaintiff has no other remedy, with no facts to support such conclusions, make the case one for equitable relief. Judgment affirmed. All the Justices con cur. (12 Ga. App. 749) (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 272*)-NEW TRIAL (§ 18*)-GROUNDS-AMENDMENT-NECESSITY OF EXCEPTION. The improper allowance of an amendment to the pleadings cannot be made the subject-matter of a ground of a motion for new trial. Bulloch v. Cordele Sash Co., 114 Ga. 627, 40 S. E. 734; Hammond v. George, 116 Ga. 792, 43 S. E. 53; Lowery v. Idleson, 117 Ga. 778, 45 S. E. 51. Since no timely exception was filed to the ruling upon the amendment in the present case, the amendment must be adjudged to have been properly allowed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1611-1619; Dec. Dig. 8 272; New Trial, Cent. Dig. §§ 24-29; Dec. Dig. § 18.*] 2. APPEAL AND ERROR (§ 1002*)-VERDICT · EVIDENCE-INSURANCE. Under the evidence it was issuable as to whether the plaintiff (the insured) voluntarily surrendered the policy, or whether it taken from his wife without her consent and was without his knowledge; and consequently the verdict of the jury upon that point is conclusive. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. & 1002.*] 3. INSURANCE (§ 360*)-TENDER OF PREMIUMS -NECESSITY. After the agents of the defendant company took up the policy and notified the insured that they would receive no further premiums from him, it was unnecessary that he should tender payment of the weekly premiums. The law does not require the doing of a vain and useless thing. Cent. Dig. §§ 913, 916-922, 924; Dec. Dig. § [Ed. Note. For other cases, see Insurance, 360.*] CANCELLATION 4. INSURANCE (§ 349*) [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 891, 895-902, 913; Dec. Dig. 349.*] Error from Superior Court, Floyd County; J. W. Maddox, Judge. Action by Charles Scott against the Pilgrims' Health & Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed. Harris & Harris, of Rome, for plaintiff in fendant in error. error. Maddox & Doyal, of Rome, for de RUSSELL, J. Judgment affirmed. (12 Ga. App. 753) DOZIER V. CENTRAL OF GEORGIA RY. CO. CENTRAL OF GEORGIA RY. CO. v. (Nos. 4,702 and 4,703.) (Court of Appeals of Georgia. June 10, 1913.) (Syllabus by the Court.) 1. RAILROADS (§§ 313, 317*)-CROSSING ACCIDENT-SPEED-LIABILITY. personal injuries caused by the running of The plaintiff sued to recover damages for the defendant's locomotive and cars. leged that he was injured without any fault He alby the negligence of the defendant; that he or negligence whatever on his part, and solely was injured at a public street crossing by the negligent conduct of the defendant's employés in charge of the locomotive in apbell or giving any other signal, and without checking speed in compliance with the statute, proaching the crossing, without ringing the the speed of trains at public crossings in the and in violation of a city ordinance limiting show a cause of action, and the demurrer was city. Held, the allegations of the petition properly overruled. The allegations of the the court erred in granting a nonsuit. petition were substantially proved as laid, and [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1002, 1009; Dec. Dig. §§ 313, 2. RAILROADS (§ 335*)-CROSSING ACCIDENT 317.*] -DEFENSE-BURDEN OF PROOF. for the purpose of preventing injuries by the Where the statutory precautions enacted ings are not complied with, and injury results operation of railroad trains at public crossfrom such noncompliance, a prima facie case of liability is shown, from which the offend DISTRESS WARRANT-SET-OFF. A set-off of items entirely independent of and separate from the contract of rent cannot be made against the distress warrant. McMahan v. Tyson, 23 Ga. 43; Johnson v. Patterson, 86 Ga. 725, 13 S. É. 17. ing company can be relieved only by proving | 4. LANDLORD AND TENANT (§ 266*)-RENTthat the injury was caused solely by the plaintiff's own negligence, or that by the exercise of ordinary care he could have avoided the consequences of the defendant's negligence, or, in mitigation of damages, that the plaintiff's negligence contributed to the injury. Bryson v. Southern Ry. Co., 3 Ga. App. 407, 59 S. E. 1124; C. & W. C. Ry. Co. v. Camp, 3 Ga. App. 232, 59 S. E. 710. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1028, 1084, 1086-1088; Dec. Dig. § 335.*] Error from City Court of Swainsboro; H. R. Daniel, Judge. Action by J. S. Dozier against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error, and defendant files cross-bill. Reversed on main bill, and affirmed on cross-bill. Frank C. Shackelford and Horace M. Holden, both of Athens, for plaintiff in error. F. H. Saffold, of Swainsboro, for defendant in error. HILL, C. J. Judgment on the main bill of exceptions reversed. Judgment on the cross-bill of exceptions affirmed. (12 Ga. App. 754) LITTLE V. LARY (two cases). (Nos. 4,715, 4,716.) (Court of Appeals of Georgia. June 10, 1913.) (Syllabus by the Court.) 1. LANDLORD AND TENANT (§ 265*)—RENT— RIGHT TO DISTRAIN. The landlord is authorized to issue a distress warrant for rent before the rent is due, if the tenant is seeking to remove his crop from the rented premises without paying the rent. Civil Code 1910, § 3700; Smith v. Green, 128 Ga. 90, 57 S. E. 98. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1062-1074; Dec. Dig. 265.*] The rental contract being in writing, and being clear and unambiguous, parol evidence was not admissible to add to or vary its terms. Civil Code 1910, § 4268. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 1736-1744; Dec. Dig. § 393.*1 3. LANDLORD AND TENANT (§ 265*) · DISTRAINT FOR RENT-GROUNDS. * "A tenant, seeking to remove from the premises any portion of the crops before the rent is due, without his landlord's consent," and without paying his landlord, "is subject to distraint immediately, no matter what may be the purpose or intent of such removal.' Daniel v. Harris, 84 Ga. 479, 10 S. E. 1013. In the present case the defendant contended that the rent was payable in money, and that he was selling a part of the crop to raise the money for the purpose of paying the rent to his landlord. The court instructed the jury to the effect that, if they believed this to be true, they should find against the distress warrant. Held, that the charge was more favorable to the defendant than the law au thorized. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1062-1074; Dec. Dig. 265.*] [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1075-1079; Dec. Dig. 266.*] 5. LANDLORD AND TENANT (§ 265*) - LIEN FOR SUPPLIES-RIGHT TO ENFORCE. A landlord's lien for supplies may be enforced before the debt is due, if the tenant is removing or seeking to remove his crops from the premises. Civil Code 1910, § 3348(3). [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1062-1074; Dec. Dig. § 265.*] 6. NO ERROR-VERDICT SUSTAINED. No error of law appears, and the verdict for the plaintiff, both on the distress warrant and on the claim for supplies, is strongly supported by the evidence. Error from City Court of Houston County; A. C. Riley, Judge. Two cases by J. T. Lary against W. J. Little. Judgments for plaintiff, and defendant brings error. Affirmed. Jere M. Moore, of Montezuma, for plaintiff in error. C. E. Brunson, of Perry, for defendant in error. (Syllabus by the Court.) 1. MOTION TO DISMISS. June 10, The motion to dismiss the writ of error is without merit. 2. JUDGMENT (§§ 106, 138*)-TIME TO ANSWER-DEFAULT-MOTION TO OPEN-NECES SITY. Where the statute allows the defendant in an action at law to appear and answer on or before the first day of the term to which the process is returnable, and during that day he does appear and file with the clerk his plea or answer, he cannot be regarded as in default. In the present case the entry of default was prematurely made, and did not deprive defendant of the right to insist upon the plea and answer which he had filed in terms of the statute; and it was not necessary to move the court to open the default, though in such a case it is the better practice to do so. Bush v. Butler, 8 Ga. App. 345, 69 S. E. 26. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197, 249-251, 254; Dec. Dig. §§ 106, 138.*] Error from City Court of Ashburn; R. L. Tipton, Judge. Action by J. L. Black against the Ashburn Auto Company. Judgment for plaintiff, and defendant brings error. Reversed. Ga.) KELLY v. BUTLER, STEVENS & CO. 471 HILL, C. J. Judgment reversed. (12 Ga. App. 779) LONG V. MENDEL (No. 4,759.) Jno. B. Hutcheson and A. S. Bussey, both | On August 25, 1909, the defendant requested of Ashburn, for plaintiff in error. er, of Ashburn, for defendant in error. J. A. Com- the plaintiffs to sell for him 50 bales of cotton for October delivery at 124 cents per pound. Acting upon this request, the plaintiffs sold to McFadden & Bro. for the defendant on August 25, 1909, 50 bales of cotton for 124 cents per pound, to be delivered on or before October 26, 1909, subject to the rules of the Savannah Cotton Exchange, basis, good middling. In order to make the sale, it was necessary for the plaintiff to guarantee the delivery of the cotton in acand this they did. Immediately after makcordance with the terms of the contract; ing the sale, the plaintiffs notified the defendant of the sale and the terms thereof, and requested shipment of the cotton. The defendant refused to comply with the contract, and on October 26, 1909, the plaintiffs delivered to McFadden & Bro. 50 bales (Syllabus by the Court.) REVIEW ON APPEAL. The grounds of the motion for a new trial, so far as approved by the trial judge, are wholly without merit, the evidence demanded the verdict for the plaintiff, and the court did not err in so directing. Judgment is affirmed, with 10 per cent. damages for suing out and prosecuting the writ of error for delay only. Error from City Court of Monroe; A. C. of cotton, the market price of which on the Stone, Judge. Action by H. Mendel against J. L. Long. Judgment for plaintiff, and defendant brings error. Affirmed. J. H. Felker, of Monroe, for plaintiff in error. Walker & Roberts, of Monroe, for defendant in error. defendant thereupon became indebted to the day of delivery was 14 cents per pound. The plaintiff in the sum of $441.74, being the difference between the contract price and the market value of the cotton; and also in the sum of $50 additional, as commissions for making the sale. The defendant answered, denying that he was indebted to the plain HILL, O. J. Judgment affirmed, with tiffs in any sum, and denying that he audamages. (12 Ga. App. 794) KELLY. BUTLER, STEVENS & CO. (Syllabus by the Court.) FACTORS (44*)-RIGHT TO COMMISSIONS. The evidence demanded the verdict in the plaintiffs' favor, and the court did not err in overruling the motion for a new trial. [Ed. Note. For other cases, see Factors, Action by Butler, Stevens & Co. against W. H. Kelly. Judgment for plaintiff, and defendant brings error. Affirmed. Roberts & Smith and W. M. Clements, all of Eastman, for plaintiff in error. & Travis, of Savannah, and C. W. Atwill, of Travis Eastman, for defendant in error. POTTLE, J. The petition in the present case contained three counts, but, as the jury found for the plaintiffs on the second count, only this count is material in the consideration of the case. The case made by the petition is substantially as follows: [1, 2] The plaintiffs were cotton factors and engaged in the business of selling cotton on commission in the city of Savannah. The defendant was engaged in the business of selling cotton, and resided in Dodge county. thorized the execution of the contract with McFadden & Bro. From the evidence it appears that on August 25, 1909, the defendant wired the plaintiffs as follows: "Sell me fifty bales twelve quarter October delivery." On the same day plaintiffs wired the defendant: "Sold your fifty bales twelve quarter basis good mid. October delivery here." On the same day the plaintiffs addressed a letof cotton had been that day sold to McFadter to McFadden & Bro. stating that 50 bales den & Bro. under instructions from the defendant at 124 cents per pound, to be delivered on October 26, 1909. The letter further stated that the contract for the sale was inclosed for signature of the buyers, and that the plaintiffs guaranteed delivery of the cotton. On the same day the plaintiffs addressed a letter to the defendant, stating & Bro., and the terms upon which the sale that the cotton had been sold to McFadden written contract for sale, to be signed by the was made. In this letter was inclosed a defendant; this contract reciting, among to the rules of the Savannah Cotton Exother things, that "this sale is made subject change," with certain modifications which were noted. The defendant made no reply to this letter, and failed to sign and return the contract. Several communications were calling his attention to his failure to sign and addressed by the plaintiffs to the defendant, return the contract, and no response was received from the defendant. On October 25th, the day before the delivery was to be made, the plaintiffs wired the defendant that they For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ance with his original agreement and the loss which the plaintiffs had sustained by reason of being compelled to purchase cotton in the market and deliver it to McFadden & Bro. in accordance with the contract. The plaintiffs were entitled to their commission of $50 for making the sale, this amount being shown by the evidence and being the usual and customary commission charged by cotton factors in Savannah. The rules and by-laws of the Savannah Cotton Exchange were immaterial, and their introduction in evidence was not hurtful to the defendant. [3] The ground of the motion for a new trial in which complaint is made that counsel for the plaintiffs were permitted to interrogate the defendant in reference to certain matters to which he had testified to on a former trial, because counsel did not read to the defendant the testimony which he was alleged to have given on a former trial, is too indefinite to be considered. But, aside from this, it is immaterial, as the result would have been the same had the defendant not been thus interrogated. There was no error in overruling the motion for a new trial. Judgment affirmed. (12 Ga. App. 816) would buy 50 bales of cotton to fill his con- | contract, but the action was predicated upon tract; and to this telegram the defendant his failure to deliver the cotton in accordreplied as follows: "Previous wires if you buy cotton its up to you will not authorize same." On October 26th the plaintiffs wired the defendant that they had bought the cotton to fill his contract, and inclosed him a statement of the account showing the amount due the plaintiffs on account of the transaction. The defendant did not deny sending the telegrams in reference to the transaction nor communications sent to him from time to time by the plaintiffs. He contended that he was justified in refusing to sign the contract of sale by reason of the fact that it contained a stipulation that the sale was to be made subject to the rules of the Savannah Cotton Exchange. He further contended that the sale made as evidenced by the telegram was executory, and that the conduct of the plaintiffs, in sending him the written contract to sign, was a recognition of this fact; and, further, that if the original contract was not executory there had been a novation, by reason of the fact that plaintiffs did not rely upon the telegram, but insisted upon the execution of the subsequent contract. No such issue as this was raised in the defendant's answer, but in his testimony he assigned this as a reason for failing to execute the contract sent to him by the plaintiffs. There is a suggestion in the brief of counsel for plaintiffs in error that the contract was a speculation in futures, but there is nothing in the evidence to justify this argument. The evidence demanded a finding that the contract was for the sale and delivery of actual cotton, and that the plaintiffs did deliver to McFadden & Bro. 50 bales of cotton in accordance with the contract. It is insisted, in the motion for a new trial, that the defendant should have been allowed to prove that the plaintiffs considered the contract executory, and did not rely upon the telegrams as evidencing a complete contract. But the law fixes the status of the contract. It was not executory. The defendant directed the plaintiffs as his factors and agents to sell for him 50 bales of cotton for October delivery at a certain price. The plaintiffs accepted this commission and immediately made the sale, obligating themselves to make delivery for and in behalf of the defendant in accordance with the contract. So far as the defendant and the plaintiffs are concerned, the contract was completely executed, and nothing remained to be done but to deliver the cotton in accordance therewith. The defendant became bound to make this delivery, and the plaintiffs, under their contract with McFadden & Bro., became obligated to see that delivery was made by the defendant. The failure of the defendant to execute the subsequent contract is wholly immaterial. The suit was not brought for damages for his failure to execute this SMITH ▼. CITY OF ATLANTA. (No. 4,903.) The evidence was not legally sufficient to establish guilt, and the finding of the recorder was therefore contrary to law, and on certiorari should have been reversed by the superior court. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.*] (Additional Syllabus by Editorial Staff.) 2. CRIMINAL LAW (§ 552*)-CIRCUMSTANTIAL EVIDENCE-PROBATIVE EFFECT. lied on to convict of violating the prohibitory When circumstantial evidence alone is relaw, the circumstances must be sufficient to exclude every other reasonable hypothesis than that of defendant's guilt. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1257, 1259-1262; Dec. Dig. § 552.*] Error from Superior Court, Fulton County; Geo. L. Bell, Judge. Mamie Smith was convicted of violating a section of the City Code of Atlanta, and from an affirmance on certiorari she brings error. Reversed. John S. McClelland, of Atlanta, for plaintiff in error. J. L. Mayson and W. D. Ellis, Jr., both of Atlanta, for defendant in error. HILL, C. J. Mamie Smith, a colored woman, was tried by the recorder of the city |