DE GRAFFENRIED v. MENARD.

MENARD v. DE GRAFFENRIED. (Supreme Court of Georgia. March 23, 1898.) VENDOR AND PURCHASER-TENDER-PLEADING

INSTRUCTIONS-APPEAL-RECORD-REVIEW.

1. Where land was sold, the purchase money partially paid, a promissory note given for the balance, and the vendor executed a bond conditioned to make title to the vendee upon payment of the note, a tender by the latter, after the maturity of the note, of the principal and interest due thereon, coupled with a condition that the vendor make and deliver to the vendee the conveyance called for by the bond, was not, under section 3728 of the Civil Code, a valid and lawful tender; the same not being "unconditional except for a receipt in full or delivery of the obligation."

2. Exceptions to refusals by the trial judge to allow a defendant to introduce evidence in support of specified contentions embraced in pleas are not meritorious, when it does not appear what the evidence offered and rejected was. The same not being set forth, this court cannot undertake to determine whether refusing to allow its introduction was or was not

erroneous.

3. Where a defendant,-who has filed several pleas, raising different issues in the case,-during the progress of the trial, in open court, admits all of the plaintiff's claim, except so much thereof as is attacked and affected by one of the pleas, it is not erroneous for the court to instruct the jury that the only issue submitted to them is the one raised by this particular plea.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by M. C. De Graffenried against A. C. Menard. Judgment for defendant, and plaintiff brings error. Defendant files a cross bill of exceptions. Judgment on main bill of exceptions reversed. On cross bill, affirmed.

FISH, J. The plaintiff in this case sold the defendant certain land; taking from the latter a promissory note for a part of the purchase money, and giving her a bond for titles. After the note had matured, the plaintiff brought suit thereon against the defendant. The defendant, among other things, pleaded tender. The tender was coupled with the condition that the plaintiff should execute and deliver to the defendant a deed in accordance with the bond for titles. The court charged the jury that the coupling of the tender with this condition "did not take it out of the rule, and make [it] a conditional tender," under the law. Error is here assigned upon this charge. McGehee v. Jones, 10 Ga. 127, is a case directly in point on the question raised by the exception to this portion of the charge of the court. There the purchaser of certain real estate gave his notes therefor, payable at different dates, and the vendor gave him a bond conditioned to make "good and warranty titles when the purchase money

was paid." The purchaser paid all the notes but one, upon which suit was brought and judgment obtained by the executors of the vendor. Some time after the rendition of this judgment the vendee filed a bill against these executors, praying for an injunction and general relief, in which, among other things, he alleged that he had paid a large part of the judgment, and at a specified date he tendered to one of the executors "the full amount of the balance due on said judgment, and demanded titles from him, which this executor neglected and refused to make." The court held that the allegations as to the tender were too vague and uncertain, and also held that "the averments of tender [were] fatally defective, in this: that they [stated] a conditional tender. The offer to pay must be unconditional." In Cothran v. Scanlan, 34 Ga. 555, where the complainant in the court below had filed a bill, one of the prayers of which was that the defendants "be decreed to make titles to him for certain real estate which he had purchased from them, and paid for in part, giving his promissory note for the balance," the bill alleged that on a certain date the complainant had called on one of the defendants, and offered to pay him the amount legally due on the note, "upon the condition that the defendants would then and there make titles to the complainant," and that said defendant "refused to accept said tender or to make the titles." It was held that the averments as to tender were fatally defective, in that they stated a conditional tender; citing McGehee v. Jones, supra. See, also, Miller v. Swift, 39 Ga. 91. According to section 3728 of the Civil Code, a tender must be "unconditional except for a receipt in full or delivery of the obligation." This recognizes and lays down the general rule followed by this court in the cases above cited, and provides the only exceptions thereto in this state. The defendant in the present case, in order to have made her tender of the amount due on the note one which the plaintiff was legally bound to accept, should have made it unconditionally, or conditioned only upon a receipt in full for the indebtedness which she sought to discharge, or a delivery of the note; that is, the obligation which represented the indebtedness. The tender, being clogged by a condition not recognized by the law, was not a valid one; consequently the charge of the court upon this point was erroneous. The question with which we have been dealing was not considered or passed on in Sanderlin v. Willis, 94 Ga. 171, 21 S. E. 291, nor in the same case in 98 Ga. 278, 25 S. E. 437. In that case the defendant sought to recoup damages resulting from an alleged breach of the bond for titles on the part of the plaintiff, and alleged that he offered to pay the balance of the purchase money when the note fell due, and was ready, and had been since then ready.

to make payment whenever the plaintiff would make or furnish him good and sufficient titles to the land, agreeably to the terms of the bond; that at the maturity of the note the defendant called upon him to make or furnish "said title," and the plaintiff, in violation of his contract, wholly refused, and had hitherto wholly failed, to make "said title." The plea further alleged that the defendant had "hitherto continually offered to return the land to the plaintiff, and pay him full value for the use thereof," and contained an offer to surrender possession, and account for the rents received by defendant during the time of his occupation of the premises, and prayed judgment, by way of recoupment, for the amount he had paid, less the rental. On general demurrer, this plea was stricken, and the defendant excepted. This court held that the court below erred in striking this plea. The question as to whether there was a tender coupled with a condition that the plaintiff should execute and deliver to the defendant a deed, in accordance with the bond for titles, was not presented or passed on. When the case was here the last time, in 98 Ga. 278, 25 S. E. 437, the court simply held that the plea, such as it was, was not proved.

2. In the cross bill the defendant in error assigns error upon refusals by the trial judge to allow her to introduce evidence in support of specified contentions embraced in certain pleas. In none of the exceptions or grounds of error does it appear what the evidence excluded was, nor what objection, if any, was made to its introduction, and upon which the court passed. Nor does it appear that the evidence offered was excluded simply because it was tendered in support of a particular plea. Evidence offered in support of a perfectly good plea may be inadmissible for various reasons, and upon objection to its admission, based upon any one of such reasons, the court may legally exclude it. The evidence rejected not being set forth, this court cannot undertake to determine whether refusing to allow its introduction was or was not erroneous.

3. Another ground of alleged error in the cross bill is that the court charged the jury as follows: "The only issue I submit to you is raised on the pleas, and that is the plea of tender that is made in this case. The other pleas in the case, in the opinion of the court, do not submit issues which are necessary for you to pass upon." In the first part of the charge of the court, which the judge ordered filed and made a part of the record in the case, it is stated that it was admitted by the defendant, through her counsel, that she owed the note sued on by the plaintiff, and the interest thereon for one year; she contending that at the maturity of the note she tendered to the plaintiff the amount of the note, with 30 S.E.-36

the interest due thereon to the time of the tender, that it was declined by the plaintiff, and that after that time the note did not bear interest. The suit was upon a promissory note, and was for the full amount of the principal and interest apparently due thereon; and the effect of this admission by the defendant was to eliminate from the case every issue which may have been previously raised by her pleas, except the one made by the plea of tender. Therefore, as against the defendant, it was not erroneous for the court, in its charge, to submit that issue alone to the jury. Judgment on main bill of exceptions reversed; on cross bill, affirmed. All the justices concurring, except COBB, J., absent for providential cause.

BLODGETT et al. v. BOARD OF EDUCA-
TION OF RICHMOND COUNTY.
(Supreme Court of Georgia. March 23, 1898.)
SCHOOLS FOR Colored CHILDREN—
DISCONTINUANCE.

The questions made in this case are controlled by the decision this day rendered in the case of Board v. Cumming, 29 S. E. 488. (Syllabus by the Court.)

Error from superior court, Richmond county; E. H. Callaway, Judge.

Action between A. S. Blodgett and others and the board of education of Richmond county. From the judgment, plaintiffs bring error. Judgment affirmed.

Salem Dutcher, for plaintiffs in error. Ganahl & Ganahl, Frank H. Miller, and W. K. Miller, for defendant in error.

PER CURIAM. Judgment affirmed.

GRIGGS v. MAYOR, ETC., OF MACON. (Supreme Court of Georgia. March 23, 1898.) CITY ORDINANCE-REGISTRATION OF DOGSVALIDITY-POLICE POWERS.

1. The mayor and council of a city, the charter of which authorizes them to "pass such ordinances as may be deemed necessary for the regulation of stock and other animals within the city," and also contains the usual "general welfare clause," have the power to pass and enforce a penal ordinance requiring all persons keeping dogs on their premises within the city to register the same, procure a badge for each dog so kept, and pay a fee of one dollar for each registration and badge.

2. "The power to regulate the keeping of dogs, and to enforce such regulations by forfeitures, fines, and penalties, is recognized as one within the police power."

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by the mayor, etc., of Macon against Harry Griggs for violating city ordinance. Judgment for plaintiff, and defendant brings error. Affirmed.

Hope Polhill, for plaintiff in error. Minter Wimberly and Robt. Hodges, Sol. Gen., for defendant in error.

LUMPKIN, P. J. The charter of the city of Macon authorizes the mayor and council to "pass such ordinances as may be deemed necessary for the regulation of stock and other animals within the city," and also contains a "general welfare clause," conferring upon the mayor and council the powers usually embraced in like portions of municipal charters.

The question presented by the present case is whether or not the mayor and council of Macon have the power to pass and enforce a penal ordinance requiring all persons keeping dogs on their premises within the city limits to register and procure badges for the same, and pay a fee of one dollar for each registration and badge. It seems difficult to fix with precision the legal status of the dog, but we have reached the conclusion that an ordinance of the kind above indicated was within the domain of the powers enjoyed by the municipal authorities of Macon. In 1 Dill. Mun. Corp. (4th Ed.) 212, note 2, it is said that "the power to regulate the keeping of dogs, and to enforce such regulations by forfeitures, fines, and penalties, is recognized as within the police power"; and, as authority for this proposition, the case of City of Faribault v. Wilson, 34 Minn. 254, 25 N. W. 449, is cited. In that case Wilson was prosecuted and convicted before a city justice for violating the provisions of an ordinance requiring the owner of every dog to register the same with the city recorder, and at the same time pay a specified fee. Each person complying with the requirements of this ordinance was entitled to a certificate showing his right to keep upon his premises the dog therein described, and every person keeping a dog upon his premises without complying with the terms of the ordinance was made subject to fine and imprisonment. This ordinance was passed under a statute authorizing the council to "regulate or prevent the running at large of dogs, to require license for keeping the same," etc. Sp. Laws 1878, p. 243, § 3. The supreme court of Minnesota held that the ordinance was not unreasonable, and affirmed the conviction. It is true that the power conferred by the charter of Macon is not stated in such explicit terms as that given to the city of Faribault, but we think, nevertheless, it was sufficient to warrant the adoption by the mayor and council of Macon of the ordinance now under review. In delivering the opinion of the court in the case just cited, Chief Justice Gilfillan remarked that the power to regulate the keeping of dogs was one very generally exercised, and that it is recognized as within the police power; and observed that regulations of this kind were proper, because dogs, from their nature, were liable to become nuisances.

So regarding them, the requirement of fees for registering them has a tendency to reduce their number. In Van Horn v. People, 46 Mich. 183, 9 N. W. 246, it was held that an act taxing dogs, and appropriating the resulting fund to the payment of damages done by dogs to sheep, was not strictly a "tax" law, but an exercise of the police power of the state; and in the same case it was said that "dogs are properly subjected to special and peculiar regulations, for the purpose of repressing the mischief likely to be done by them to more valuable property and to persons." So, in Ex parte Cooper, 3 Tex. App. 489, it was said that an act exempting to each family one dog, and imposing on all other dogs a "tax," was not technically a tax law, but more properly a police regulation, and a legitimate exercise of the police power. And, to the same effect, see Blair v. Forehand, 100 Mass. 136.

These authorities tend to establish the proposition that the fee of one dollar required in Macon for registering a dog and obtaining a badge, the purpose of which is to evidence the fact of registration, is not, in a strict sense, a "tax," but should be regarded as a police regulation. Thus viewing it, we are of the opinion that it is not unreasonable, and should be upheld. Judgment affirmed. All the justices concurring, except COBB, J., absent for providential cause.

HORNE v. RODGERS. (Supreme Court of Georgia. March 23, 1898.) PLEAS IN ABATEMENT-DEFENSES ARISING AFTER COMMENCEMENT OF SUIT-DIRECTION Of Verdict.

1. A plea which, in substance, alleges that the plaintiff's action was brought in violation of a valid contract made by him, not to bring the same before the happening of a specified event, which has not yet taken place, is, in effect, a plea in abatement, and, this being a dilatory plea, cannot, over the plaintiff's objection, be filed after the first term.

2. A plea is not demurrable merely because "it [contains] new facts and new defense, which came into existence subsequent to the time the plaintiff's right of action accrued, and after the filing of the original" petition in the case. These grounds of demurrer, standing alone, even if true, are not sufficient to show that the plea should be stricken.

3. There is no law in this state authoriz ing a judge to direct a verdict giving affirmative relief to a defendant when the plaintiff's petition does not admit facts warranting such a verdict, and when no evidence at all is introduced.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by E. A. Horne against A. M. Rodgers. Judgment for defendant, and plainReversed. tiff brings error.

Hugh V. Washington, for plaintiff in error. Hardeman, Davis & Turner, Minter Wimberly, and J. L. Hardeman, for defendant in

error.

FISH, J. 1. The plaintiff brought suit against the defendant, which was returnable to the April term, 1894, of Bibb superior court. The case came on for trial on January 20, 1897, at which time the defendant offered an amendment to his original plea, in which amendment he alleged that, for a certain consideration, the plaintiff had entered into a described written agreement with the defendant, a copy of which was attached to the amended plea, and "that said plaintiff by said agreement was estopped and barred from bringing suit against this defendant until the suit of T. J. Carstarphen against the defendant was determined, as per said agreement," and that "plaintiff brought this action before said Carstarphen's suit was ended." The plaintiff objected to the allowance of this amended plea, the first ground of objection being "that said plea was too late; that, being a plea in abatement, and a dilatory plea, it should have been filed at the first term." This objection was overruled by the court, and the plea allowed. While this same written agreement was set up, as matter of defense to the plaintiff's action, in one paragraph of the defendant's original plea, together with an alleged compliance on the part of the defendant with its terms, and an alleged failure of the plaintiff to comply with his obligation thereunder to pay the balance of the purchase money for the land, it was not then pleaded in abatement of the plaintiff's action. The amended plea was, in effect, a plea in abatement; and as such, being a dilatory plea, it could not, over the objection made by the plaintiff, be filed after the first term. Civ. Code, § 5058.

2. The plaintiff excepts to the judgment of the court allowing the second amended plea, over his objection "that it contained new facts and new defense, which came into existence subsequent to the time the plaintiff's right of action accrued, and after the filing of the original, and could not be pleaded under the statutes of 1893 and 1895, or under any other law; that, having come into existence since the cause of action, the matters set up in said plea could not be pleaded as a defense, or to affect the plaintiff's cause of action as set out in the original petition, in any way." We do not think that there was any merit in this objection. There is nothing in the act of 1893, nor in the act of 1895, nor any other law of this state, which denies a defendant the right to file a plea merely because the facts upon which it is based came into existence after the plaintiff's cause of action accrued, or because such facts transpired after the plaintiff brought his suit. To hold otherwise would be to hold that a defendant could not plead that after the filing of the suit he had fully paid the plaintiff's demand. The law encourages the settlement of litigation by the parties thereto, and certainly if a plaintiff should undertake to obtain a judgment against a defendant in a case which, after suit was

brought, had been settled, outside of the court, between himself and the defendant, the defendant would have the right to defeat so unjust an undertaking by pleading and proving the settlement. So, too, if, after the suit was brought, he had paid the plaintiff's claim in part, he would have the right to plead and prove such partial settlement if the plaintiff should ignore the same, and undertake to obtain a judgment against him without giving him the benefit thereof.

3. There was no demurrer to the petition, nor to either of the amendments thereto which were offered by the plaintiff and allowed by the court; and, as stated in the bill of exceptions, "the court, over the plaintiff's objection, directed a verdict for defendant on the pleadings, without hearing evidence, or permitting the plaintiff to go to the jury." We do not know upon what view of the case the court directed the verdict which was rendered in this case simply upon the pleadings. The plaintiff's petition did not admit facts warranting such a verdict. It is true that by an amendment to his petition the plaintiff admitted the execution of the written agreement set up as matter of defense to the merits, and also pleaded in abatement of the action; but he alleged that he was induced to enter into such agreement with the defendant by fraud practiced upon him by the latter, and also alleged that the defendant himself had failed to comply with his part of this agreement. We know of no law which authorized the judge to direct a verdict granting affirmative relief to the defendant upon the pleadings in this case. Judgment reversed. All the justices concurring, except COBB, J., absent for providential cause.

MACON & I. S. ELECTRIC ST. RY. CO. v. HOLMES.

(Supreme Court of Georgia. March 23, 1898.) STREET RAILROADS-CROSSING ACCIDENTS-DUTY OF CONDUCTOR-CONTRIBUTORY NEGLIGENCE. 1. In a suit against a street-railroad company for personal :njuries resulting by its car coming in contact with one who was undertaking to cross its track, the plaintiff cannot recover, if, by the exercise of ordinary care, he could have avoided the consequences of defendant's negligence at any time after such negligence had become apparent, or he had reason to apprehend its existence. The following charge of the court, without qualification, was therefore error: "Indeed, the plaintiff could recover, if the injury was inflicted under these circumstances, if his going upon the track had been in the exercise of ordinary care, notwithstanding he may have been himself in some degree of negligence. If his going upon the track was proper, under the evidence, in that it was not contrary to the exercise of ordinary care, and he was injured thereafter, he would be entitled to recover, even though you should believe he was at some fault himself, in failing to avoid the injury."

2. After the plaintiff has become apprised of the existence of defendant's negligence of which he complains, if he could avoid its consequen

ces by the exercise of ordinary diligence, and fails to do so, such negligence on his part will defeat a recovery. It was therefore error for the court to charge the jury as follows: "If he (the plaintiff) was advised of the defendant's negligence, the moment he was so advised, or the moment he had reason to apprehend the defendant's negligence, he was bound from that moment to exercise ordinary diligence to keep from receiving any injury by reason of the negligence of the defendant; and, to the extent he failed to exercise such diligence, he would be negligent. Such negligence would not defeat his recovery, but would lessen it in accordance with what you believe its proportion bore to the defendant's negligence."

injured. The plaintiff obtained a verdict for $700, and, defendant's motion for a new trial being overruled, it excepted.

1, 2. Among the grounds of the motion for a new trial, error was alleged in the following charge of the court: "If he (the motorman) failed to do those things which ordinary care would have prompted a person in his position, and with his knowledge of the plaintiff, to do, and by reason of his failure to observe those duties the plaintiff was injured without fault on his part, the plaintiff can recover. Indeed, the plaintiff could recover, if the injury was inflicted under these circumstances, if his going upon the track had been in the exercise of ordinary care,

tion of this kind, it was error for the court to instruct the jury that such was his duty, and a failure in its discharge would be negligence. 4. The evidence not demanding the verdict for the plaintiff, the above errors in the charge of the court, excepted to by the defendant, require the grant of a new trial.

(Syllabus by the Court.)

Error from city court of Macon; J. P. Ross, Judge.

Action by J. B. Holmes against the Macon & Indian Springs Electric Street-Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dessau, Bartlett & Ellis, for plaintiff in error. Guerry & Hall, for defendant in error.

LEWIS, J. This was an action for damages on account of personal injuries alleged to have been sustained by the plaintiff by reason of his being struck by a street car of the defendant while he was attempting to cross the track of its railway. Plaintiff's contention was: That as he was approaching, upon a public street in the city of Macon, the track of the street-railroad company, his view was obstructed by some wagons on the street, and near the track, which prevented him from seeing any distance in the direction from which defendant's car was coming. He was partially deaf, and did not hear the running of the car at all. Did not know of its approach until he was struck, just as he was about to leave the track. That the motorman knew of his impaired hearing, and that he was running at a reckless and dangerous rate of speed. That he did not give the alarm by ringing his bell, which plaintiff could have heard. The defendant contended, on the other hand, that it did not observe plaintiff until it was too late to prevent the accident; that the alarm was duly given of the approach of the car, which was running at a moderate rate of speed,-four miles an hour; that it exercised due diligence; and that the accident was unavoidable. It further contended that the motorman was watching out ahead, and that the conductor was engaged inside of the car, and consequently did not observe the plaintiff at all until after he was

in some degree of negligence. If his going upon the track was proper, under the evidence, in that it was not contrary to the exercise of ordinary care, and he was injured thereafter, he would be entitled to recover, even though you should believe he was at some fault himself, in failing to avoid the injury." Also in charging: "Because the rule which requires one to avoid the consequences of another's negligence does not apply until he sees the danger, or has reason to apprehend it. Therefore, if the plaintiff was properly on the track, he is not chargeable with negligence, in failing to avoid the injury from the running of the cars, unless he failed to exercise due diligence to avoid the consequences of the defendant's negligence, if the defendant was guilty of any negligence, after such negligence was known to the plaintiff, or he had reason to apprehend it. You will therefore look to the testimony, to see whether the plaintiff, if he was properly upon the track in the beginning, ever had any reason to apprehend his danger; see if he was ever advised of the defendant's negligence, provided you believe the defendant was guilty of any negligence. If he was never advised of the defendant's negligence, or had reason to apprehend it, then he would not be chargeable with any consequences in failing to avoid the result of the defendant's negligence. If he was advised of the defendant's negligence, the moment he was so advised, or the moment he had reason to apprehend the defendant's negligence, he was bound from that moment to exercise ordinary diligence to keep from receiving any injury by reason of the negligence of the defendant; and, to the extent he failed to exercise such diligence, he would be negligent. Such negligence would not defeat his recovery, but would lessen it, in accordance with what you believe its proportion bore to the defendant's negligence." The principle announced in the first headnote is too well established, both by the stat ute and the decisions of this court, to require any elaboration. Some confusion is liable to arise, even in the legal mind, on account of the apparent conflict in the two provisions of the Civil Code,-one relating to