upon their credulity. An explanation of this character should not be readily accepted as sufficient to remove the inference of guilt arising from unusual and most suspicious circumstances. If it should be accepted as sufficient, the door would be opened wide for those who violate the prohibition law in the sale of liquor to escape. The evidence of the witness that the 75 cents was the repayment of a debt, and not a payment for the pint of whisky, strongly suggests afterthought. It also seems to be unreasonable that the accused should be carrying around concealed on his person pints of whisky for the purpose of presenting them to his friends. The fact that they were concealed is a strong indication that his purpose was to sell, and not to make gifts. The jury saw the witness and heard the testimony, and the trial judge approved the verdict. A majority of this court is not willing to hold that the jury's deduction of guilt from the suspicious circumstances surrounding the conduct of the accused was not warranted, and the judgment is therefore affirmed.

RUSSELL, J., dissents.

(13 Ga. App. 35)

(No. 4,296.)

LUKE v. LIVINGSTON. (Court of Appeals of Georgia. July 8, 1913.)

(Syllabus by the Court.)

APPEAL AND ERROR (§§ 663, 1002*)-GAMING (8 49*)-REVIEW-CONFLICTING EVIDENCECERTIFICATE OF JUDGE.

The evidence authorized the verdict, and

there was no material error on the trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2853-2855, 3935-3937; Dec. Dig. §§ 663, 1002; Gaming, Cent. Dig. 88 100-102; Dec. Dig. § 49.*]

record that there was evidence that Living. ston's agent paid Luke the $1 mentioned in the contract. It is true there was positive testimony on the part of the defendant that no money whatever was paid; but, the jury having settled the truth of this matter, we must assume that the part of the purchase price to which we referred in our former decision was paid. Assuming this to be true, the only other question is whether the evidence shows that the contract was a mere subterfuge to cloak and cover an illegal transaction in cotton futures. As to this point, too, the evidence is directly in conflict, and the jury preferred the testimony of the plaintiff rather than that of the defendant. There being evidence sufficient to authorize a finding in favor of the plaintiff upon both of the vital issues in the case, this court is without jurisdiction to set aside the finding of the jury, unless the record discloses such material and prejudicial error upon the trial as to raise the inference that but for that error the verdict would have been different.

The fourth ground of the motion for a new trial was not argued in the brief of counsel for the plaintiff in error, and must therefore be treated as having been abandoned.

Error is assigned upon the refusal of the judge to charge the jury to the effect that: "The law favors compromises and settlements of disputes, and hence it is against the policy of the law to allow evidence to be given of any effort of settlement made with a view that if it appears that any effort of settle"I therefore charge you of compromise." ment was made by the defendant, if it was made with a view of a compromise, you could not consider or act upon it as evidence against the party offering the compromise," without

Error from City Court of Ocilla; H. E. qualifying this instruction by immediately Oxford, Judge.

Action by J. K. Livingston against J. C. Luke. Judgment for plaintiff, and defendant brings error. Affirmed.

Haygood & Cutts, of Fitzgerald, for plaintiff in error. H. J. Quincey, of Ocilla, and Elkins & Wall, of Fitzgerald, for defendant

in error.

adding the following language: "If it has been admitted, it has not been admitted as an admission on the part of the defendant that he was due any amount, but merely as illustrating whether or not the defendant intended to deliver actual cotton, or illustrative whether or not it was a speculative contract or a chance in futures." It is insisted that this qualification of the charge which had been requested was erroneous because it contradicted and nullified the charge re

RUSSELL, J. When this case was here before (Luke v. Livingston, 9 Ga. App. 116, 70 S. E. 596), this court ruled: (1) that the ac-quested, and because the effect of the qualceptance of an offer to sell may be shown by proof that the person to whom the offer was made had paid a portion of the purchase price, and (2) that parol evidence is competent to show that the written contract, apparently relating to an actual sale of cotton, was in fact entered into merely for the purpose of allowing the parties to deal in cotton futures, and that the transaction was not bona fide, but a speculative and gaming contract. The case afterwards went to trial upon its merits, and it appears from the

ification of the charge is to allow statements made of any compromise to be received against the defendant as to the original intent with which the contract was made, and therefore as bearing upon the principal issue in the case. It is of course well settled that evidence of an effort to compromise, or testimony tending to show an attempt to compromise, is generally inadmissible, and yet we find no error in the instruction of the court in this case, because one of the main issues in the action was, What was the

intention of the parties as to actual delivery [ plaintiff for the recovery of either actual or of real cotton? In other words, the jury had to determine whether it was the intention of the parties to deliver "spot" cotton, or to settle upon the basis of the difference between the market price of cotton mentioned in the contract and the market price of cotton on the date fixed by law for its delivery, and the fact that either of the parties had offered or agreed to take a sum of money in lieu of the fulfillment of the precise terms of the contract might be a circumstance from which the jury could infer that the sale of actual cotton was not intended.

(Court of Appeals of Georgia. July 8, 1913.) paired. Now, that comes under the general head of pain and suffering. There is no mathematical measure given by law for this. The ATTACHMENT (§§ 343, 373*)—Wrongful AT- jury ascertains from the evidence if defendTACHMENT DAMAGES REMEDY OF DEFEND-ant is liable, how much pain and suffering has ANT-REMEDY OF THIRD PERSON. been undergone by plaintiff, and how much she will undergo, if the evidence discloses it. Then they will find for her what their enlightened consciences, as impartial jurors, would find from the evidence to be fairly compensatory to

1. WITNESSES (§ 52*)-HUSBAND AND WIFE Moore, both of Thomasville, for defendant

newal note, would constitute a good defense, | been submitted to the jury. The general rule either of total or partial failure of consideration, according to the facts.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 436-444; Dec. Dig. § 176.*]

Error from City Court of Albany; Clayton Jones, Judge.

Action by H. W. Rawlins against W. T. Lockett. Judgment for plaintiff, and defendant brings error. Reversed.

is that the giving or renewal of a note, with knowledge of defects, constitutes a waiver of such defects, or of any breach of warranty arising therefrom; but the facts in proof here make an exception to this general rule. It is true, according to the evidence, that the defects existed when the renewal note was given by the defendant, and he had knowledge of these defects; but the plaintiff promised, as a consideration for the renewal, that he would make good his warranty, and would guarantee that the defects complained of would be completely remedied, and it was on this promise and guaranty that the renewal note was made by the defendant. In McDaniel v. Mallary Bros. Mach. Co., 6 Ga. App. 848, 66 S. E. 146, the second headnote states the general rule, with the exception, as follows: "Ordinarily, when a purchaser renews a note or other obligation given for the purchase price of property, and knows at the time of the renewal that the property is defective, he cannot thereafter be heard to complain of the defects as a defense. The rule is subject to exceptions, and is not applicable where a renewal note is given under such circumstances as to indicate that it was given and taken with a contrary understanding." The testimony of the defendant, above quoted, seems

This was a suit in trover to recover possession of an automobile. The evidence, briefly stated, is as follows: Rawlins, plaintiff, sold the defendant, Lockett, an automobile. Lockett paid cash $900, and gave Rawlins three notes of $300 each for the balance of the purchase price. The title was reserved by Rawlins until payment of the notes. The automobile appeared to be in good condition when purchased. It "ran along all right for about 250 or 300 miles, when the engine would not run the car." This was before any of the notes had been paid. Lockett notified Rawlins of the defects in the car, and Rawlins thereupon put another engine in the car. This second engine appeared to be all right, and Lockett thought the defect was remedied, and paid the first of the notes that had become due. After the automobile had been run about the distance it had run with the first engine, the second engine broke down in the same manner as the first. As soon as Lockett discovered this he notified Rawlins, and Rawlins put another engine in the automobile. This third engine, after running about the same length of time and distance as the other two, also broke down, and Lockett refused to pay the outstanding note. Rawlins then told Lockett that he would put in another engine in place of the defective one, and would guarantee that it would (13 Ga. App. 50) make the automobile all right, provided CENTRAL OF GEORGIA RY. CO. v. WOODLockett would take up the outstanding note ALL. (No. 4,775.)

to us to have presented at least a partial failure of consideration, and was sufficient to have been submitted to the jury in proof of such failure of consideration, and to this extent, at least, to establish the defense relied upon. Atlanta City St. Ry. Co. v. American Car Co., 103 Ga. 254, 29 S. E. 925.

Judgment reversed.

(Syllabus by the Court.)

1. APPEAL AND ERROR (§ 1064*)—HARMLESS ERROR-INSTRUCTIONS.

and give him a new note in renewal which he (Court of Appeals of Georgia. July 8, 1913.) could put in the bank. Upon this guaranty by Rawlins, Lockett took up the outstanding note and gave a renewal note. Lockett testi. fied positively that he was induced to give this note, notwithstanding the defects in the engine, because of the positive promise that he would put in a new engine, accompanied by his guaranty that it would be all right. In his own language: "I gave them that note after they said they would guarantee that the third engine would be all right, and because I believed they would do what they said they would and make good."

In charging the jury, the court (probably by a slip of the tongue) stated that the jury were to use the Carlisle Tables to determine from the context that the jury should readily the probable age of the plaintiff. It is apparent have understood that the court meant that the tables were to aid them in arriving at the probable duration of his life; but even if this was not true, the error was harmless.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. 1064.*]

Jas. Tift Mann and Thos. H. Milner, both 2. TRIAL (88 191, 193)-INSTRUCTIONS-EX

of Albany, for plaintiff in error. Peacock & Gardner, of Camilla, for defendant in error.

HILL, C. J. (after stating the facts as above). We think the direction of a verdict for the plaintiff under this testimony, was unauthorized. The evidence should have

PRESSION OF OPINION-GROUND FOR RE-
VERSAL.

A leading issue in the trial was whether the plaintiff was injured at all. Error is assigned upon each of the following excerpts from the judge's charge to the jury, on the ground that each amounted to an intimation of opinion that an injury had been sustained by the plaintiff: (a) "Now, in this case the only damage alleged is the infliction of mental and physical

a

pain and suffering, as caused by the injury they sustained." (b) "If you believe this plaintiff, under the rules of evidence and law I have given you, and the evidence that has been adduced to you, has suffered mental and physical pain, and has been caused mental and physical pain and suffering, caused by this injury, then it will be for you to say how much the damage is." (c) "If you should find, under the rules I have given you, she was entitled to damages at the time and up to now, but that there were no future damages involved, you would find sum for that amount; and if you should conclude, from the rules I have given you and the evidence adduced to you in the case, that she would suffer in the future, caused from this injury, then you would say what amount, and add that amount to the other amount. In other words, you will find a lump sum, if you should find for the plaintiff in the case.' While it is reversible error for a judge, in charging the jury, to assume the existence of any fact which is in contest, and, under section 4863 of the Civil Code a new trial must be awarded when there is an intimation of opinion, even though the verdict be right, the foregoing excerpts whether considered alone or in connection with various other parts of the charge (in which the jury were expressly told that it was for them to determine whether the plaintiff had been injured), are not fairly subject to criticism on the ground that the judge therein expressed or even intimated the opinion that the plaintiff had in fact been injured.

charge discloses that several times in the course of his instructions the judge told the jury that it was a question of fact, for their sole determination, as to whether the plaintiff received the injury alleged. At the close of the charge, in instructing the jury upon the subject of negligence, he again told them that it was for them to say whether the defendant exercised extraordinary care and diligence in avoiding the accident, “if you believe any was sustained." We refer to these portions of the charge merely as illustrative of any apparent ambiguity in the excerpts to which exception was taken, and to ascertain whether there is any ground for criticism of those particular excerpts. Of course, if the trial judge, in charging the jury, was guilty of an expression of opinion, or even by intimation conveyed to the jury his opinion as to a material fact in the case, it is doubtful if such error could be corrected at all. While it is reversible error for a trial judge, in charging the jury, to assume the existence of any fact which is in contest, it is perfectly plain to our minds that the reference of the judge to the injury sustained, in each of the excerpts, is qualified by the conditional statement at the beginning of each of them, "if the jury finds," or "if they believe"; and this qualifying statement controls and limError from City Court of Houston County; its all that follows in the subsequent stateA. C. Riley, Judge.

[Ed. Note. For other cases, see Trial, Cent. Dig. $$ 420-431, 435, 436-438; Dec. Dig. 191, 193.*]

Action by Mrs. W. A. Woodall against the Central of Georgia Railway Company. Judg. ment for plaintiff, and defendant brings error. Affirmed.

Ellis & Jordan, of Macon, for plaintiff in error. S. A. Nunn, of Atlanta, and Hall & Roberts, of Macon, for defendant in error.

ment.

Judgment affirmed.

(13 Ga. App. 68) FORD v. STATE. (No. 4,916.) (Court of Appeals of Georgia. July 8, 1913.) (Syllabus by the Court.)

DISMISSAL.

RUSSELL, J. The plaintiff sued the Central of Georgia Railway Company for dam- 1. CRIMINAL LAW (§ 1077*)—Writ of Error— ages for personal injuries, The evidence was in conflict, but authorized the finding in favor of the plaintiff.

[1] 1. The special exceptions relate to errors in the charge of the court, which, it is insisted, require the grant of a new trial. The assignment of error predicated upon the use by the trial judge of the word age instead of "expectancy," is sufficiently dealt with in the headnote. It is only necessary to say that, between the two excerpts to which exception is taken, the judge made the usual explanation as to the manner in which the tables should be used to aid in making calculations, and, therefore, it is very clear that the jury understood the judge to mean expectancy, although he said "age."

There is no merit in the motion to dismiss the bill of exceptions.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2718, 2719; Dec. Dig. § 1077.*]

Jurors are the judges of the credibility of witnesses. They may wholly disregard testimony which is at variance with the universal [2] 2. The real contest in this case arises trary to and in conflict with the evidence of the experience of humankind, or which is conupon the point as to whether the judge, in human senses, but the uncontradicted testimony his charge to the jury, intimated or expressed of an unimpeached witness should not be disrethe opinion that the plaintiff had been in-garded merely because the fact or transaction testified to by him would ordinarily be considerjured. The headnote sets out each of the ed improbable. excerpts upon which the plaintiff in error [Ed. Note.-For other cases, see Criminal places that construction. A reading of the Law, Cent. Dig. § 1250; Dec. Dig. § 558.*]