(105 S.E.)

W. English, Sr., and his successors, as pro- be withdrawn from the operation of this vided in the agreement, their lawful agent agreement and delivered to the representaand attorney to vote the said shares of stock tives of her estate. Provision was then made at all corporate meetings, subject to the con- for the election of certain persons annually as ditions and limitations expressed in the directors of the corporation, if then in life agreement. If James W. English, Sr., died, and competent to discharge the duties of the or became unable to discharge the duties office. It was provided that the stock should imposed upon him, such agency was to de- be voted so as to authorize the payment to volve upon his heirs, together with the pe- the president and vice president of $250 each, titioner, and they were jointly authorized to to be paid monthly out of the net earnings of represent the said shareholders and vote the the company after the payment of bills, with stock as fully as, James W. English, Sr., an express provision that the salaries should might. In the event of disagreement between not be otherwise paid and money should not the petitioner and the heirs at law of James be borrowed for the purpose of paying them, W. English, Sr., as to any vote, the disagree- and that the salaries should not be increased ment was to be settled by an arbitration, as during the continuance of the contract, nor provided in the agreement. The limitations any new salaried office created without the and conditions expressed were as follows: unanimous consent in writing of all the parDuring his life James W. English, Sr., could ties to the contract, and then only when the designate the president of the company and interest of the corporation should seem so to cast the vote for him. In the event of his require. Provisions were then made regarddeath the stock should be voted for James ing the sale of the stock and the holding of W. English, Jr., and should he die, then for it subject to the terms of the agreement, and Harry L. English. During the lifetime of for its deposit with James W. English as James W. English, Sr., James W. English, Jr., trustee; also certain provisions as to the should be elected vice president, but should manner in which the agreement might be he die, the stock was to be voted for the amended, and for settling any dispute among petitioner. If James W. English, Jr., became the parties. By the terms of the contract dethe president as above, Harry L. English was clared on, all stock subsequently purchased to be elected vice president, but if each died or acquired by any of the parties should at the shares of stock should be voted, in the once and without more become subject to the election of a president, for such stockholder agreement. After the execution of the conof the corporation as might be designated by tract and long before its breach the petitioner the heirs at law of James W. English, Sr. became the owner of all the outstanding A provision was made for arbitration be- stock not originally assenting to the agreetween the heirs at law of James W. English, ment, so that every share of the stock had in Sr., in case of disagreement among them. fact assented to it. Upon the death of James W. English, Jr., the authority conferred upon James W. English, Sr., and his successors to vote the stock for a vice president was to be vested in the petitioner alone, and should she so desire she was authorized to vote the entire stock (both that owned or held and that which might hereafter be owned or acquired by any of the signers) annually for such stockholder of the company as she might designate for the office of vice president, and she was expressly authorized to cast such vote for herself, it being contracted and admitted that she was, in the opinion of each of the parties, in all respects well qualified and fully competent to discharge the duties of such office. It was further contracted that in the event of her death the stock owned or held by her might on demand be delivered to her heirs at law, provided that they should be persons other than James W. English, Jr., or descendants of James W. English, Jr., and the petitioner, and that in the event that the heirs should be other than the said James W. English, Jr., or such descendants, all relations of the petitioner and her heirs at law with the other parties to this agreement should cease and determine, and her stock, and any stock to

James W. English, Jr., died in June, 1914. Prior to his death the petitioner had been granted a total divorce from him, and had intermarried with her present husband, Baron Marcus Rosenkrantz. She alleged that upon the death of James W. English, Jr., she became entitled, under the agreement, to vote the stock covered by the said contract, for the vice president, and could vote it for herself unless she chose to designate some one else. The petition showed that James W. English, Sr., during the entire time up to the death of James W. English, Jr., continued to exercise the powers under the said contract and to carry it out; that as late as November 16, 1912, which was after her di vorce from the said James W. English, Jr, and her marriage with her present husband, he wrote to her a letter, referring to the said contract and stating: "I signed it and expect to live by it as I do by all contracts I make." The petition showed that at a stockholders' meeting held July 2, 1914, the petitioner, who had become the sole executrix of the estate of William B. Lowe, Sr., in which name the said 807 shares of stock of his estate, acquired by her in fee simple as aforesaid, still stood, was represented by her hus

tion as amended, raising the points: (a) That the petition shows no cause of action and no right of recovery; (b) that the contract, "Exhibit A," was illegal and void and con

consideration for the contract, and it was nudum pactum; (d) that the petitioner, having remarried, was not entitled to the office, benefits, or emoluments of the contract, even if it was originally valid. The court overruled the general demurrer, on all the grounds stated, and the defendants excepted.

[1-5] The court did not err in any of its rulings on the pleadings. The petition set out a cause of action. The Chattahoochee Brick Company, referred to in the contract declared on, is a private business corporation which has no functions of a public character; the contract is based upon a sufficient consideration, is not void as being contrary to public policy, and is a valid contract binding upon the parties thereto; and the petitioner did not lose any of her rights under the contract by reason of her divorce and subsequent remarriage, nor by the death of her first husband, James W. English, Jr.

The judgments on both bills of exceptions are affirmed.

At that meeting a resolution was offered, providing that the officers of the company should be named and thereafter be elected by the board of directors, and their compensation be fixed by said board. The petitioner's trary to public policy; (c) that there was no husband offered as an amendment a resolution, which was seconded by Mr. Bidwell, representing 1 share of stock, that the agreement made on July 11, 1900, between the parties above named, be filed with the board, and that they should vote in accordance therewith for the officers named therein. This amendment was defeated by the vote of all shares except those voted by Baron Rosenkrantz, and the original resolution, without amendment, was carried by the same vote. Afterwards the petitioner attended the annual meeting of stockholders of the said corporation held on January 24, 1916, at which she proposed, under the terms of the said contract, to cast the vote therein mentioned for herself as vice president, together with the shares of stock known as those of the W. B. Lowe estate, and she announced, by a written statement, that she did thus cast said shares for herself, the same constituting the entire capital stock of the company. At a meeting of the board of directors held immediately after the stockholders' meeting that body ignored the action of the petitioner, and elected James W. English as president and his son Harry L. English as vice president, all directors voting for the said Harry L. English as vice president except the petitioner, she stating that she claimed to have elected herself vice president of the company at the stockholders' meeting, and hence voted "No." Harry L. English was declared elected vice president. This action was in violation of petitioner's rights under the contract. The petitioner has been deprived of the salary of $250 a month, or $3,000 a year, attached to the said office, which salary has been paid since the inception of the agreement in July, 1900, to the persons recognized as vice president. The petition alleges that. Criminal law 1151-Trial judge has disthe defendants have expressly repudiated the contract, and denied that it has any force or effect, and that the petitioner is therefore entitled to sue for damages of the breach of said entire contract for the full term thereof; that said contract vests in her the right to re ceive the salary of $3,000 per year until and through the year 1945; and she asks damages in the sum of $100,000.

BROYLES, C. J., concurs.

LUKE, J. (dissenting). I cannot concur with the conclusion reached by the majority of the court. See Morel v. Hoge, 130 Ga. 625, 61 S. E. 487, 16 L. R. A. (N. S.) 1136, 14 Ann. Cas. 935.

(26 Ga. App. 206) EDENFIELD v. STATE. (No. 11982.) (Court of Appeals of Georgia, Division No. 1. Jan. 25, 1921.)

(Syllabus by Editorial Staff.)

cretion as to continuance.

A trial judge has a wide discretion when passing on a motion for a continuance, and his discretion will not be controlled unless flagrantly abused.

2. Criminal law 1141(2)—Burden on moving party to show abuse of discretion in denying continuance.

The burden is on the party moving for a continuance to affirmatively show an abuse of discretion in the denial of such motion.

3. Criminal law 1151-Abuse of discretion in denying continuance because of defendant's illness held not shown.

The defendants demurred generally and specially to the petition. The plaintiff amended in certain particulars to meet the objections raised by special demurrer. The court, after amendment, overruled all the grounds of special demurrer except that set Where it was not affirmatively shown to out in paragraph 10 of the demurrer, which the judge that defendant was too ill to safely was sustained. (This ruling as to paragraph go to trial or to confer with and assist his 10 of the demurrer is assigned as error, in counsel, and defendant was present in court, the cross-bill of exceptions.) The defendants and the judge had the benefit of observing his renewed their general demurrer to the peti-actual condition, it did not affirmatively appear

(105 S.E.)

that the denial of a continuance was an abuse | ly show such an abuse. In the instant case of discretion.

it was not affirmatively shown to the judge that the defendant was too ill to safely go to trial or to confer with and assist his counsel throughout the trial. Furthermore, the defendant was present in court, and the judge had the benefit of observing his ac tual physical condition as it appeared to him. It does not, therefore, affirmatively appear that the judge abused his discretion in overruling that ground of the motion for a continuance which was based upon the illness of the defendant.

Under Civ. Code 1910, § 6301, requiring all [4] 2. Another ground of the motion for a grounds for a continuance to be urged at the continuance was based upon the absence of a same time, and providing that after a decision certain named witness, but it does not apof one or more grounds no other grounds after-pear that the expected testimony of this wards urged shall be heard, it was not error to refuse to consider an additional motion for continuance urged after the original motion had

been denied.

a

6. Criminal law 867 Admission of testimony not ground for mistrial when jury instructed not to consider it.

The introduction of testimony claimed to put defendant's character in issue when he had not done so himself did not require a mistrial, where the jury was specifically instructed that such testimony was ruled out and should not be considered.

7. Criminal law 1064 (7) - Instruction not reviewable when not made a ground for new trial.

The contention that language used by the judge in instructing the jury not to consider certain evidence was prejudicial cannot be considered when not made a ground of the motion for a new trial.

8. Witnesses 240 (2)-Allowance of leading questions within trial court's discretion.

It was within the discretion of the trial court to allow leading questions, and allowing the solicitor to ask such a question was not er

ror, especially where it did not appear that the

witness answered the question.

Error from City Court of Waycross; J. L. Crawley, Judge.

Dellie Edenfield was convicted of an fense, and he brings error. Affirmed.

witness, as set out in the ground, would have materially benefited the defendant if it had been presented to the jury.

[5] 3. All grounds of a motion for a continuance must be urged at the same time; and, after the decision upon one or more grounds, no other grounds afterwards urged shall be heard by the court. Civil Code 1910, § 6301. Under this ruling, the court did not err in refusing to consider an additional motion for a continuance which was urged after the original motion had been denied.

[6] 4. The court did not err in overruling the motion to declare a mistrial in the case, based upon the ground that specified testimony of a witness for the state had put the

defendant's character in issue when the de

fendant himself had not done so, since it appears from a note of the judge that he specifically instructed the jury that this testimony was ruled out, and should not be considered by them in making up their verdict. [7] (a) The insistence that the particular language used by the judge in so instructing cused is contained only in the brief of counthe jury was in itself prejudicial to the acsel for the plaintiff in error, and, not having been made in any ground of the motion for a new trial, cannot be considered.

[8] 5. The remaining special ground of the of-motion for a new trial, complaining that the court erred in allowing, over the objection of the defendant, the solicitor to ask a certained named witness a leading question, is without merit. It is well settled that it is within the discretion of the court to allow

M. D. Dickerson, of Douglas, and Jerome Crawley and Harry M. Wilson, both of Waycross, for plaintiff in error.

B. G. Parks, Sol., H. D. Reed, and Q. L. Garrett, all of Waycross, for the State.

BROYLES, C. J. [1-3] 1. A trial judge has a wide discretion when passing on a motion for a continuance of a case. He is the trier of the facts, and his discretion will not be controlled unless flagrantly abused; and the burden is upon the movant to affirmative

leading questions. Moreover, it does not appear from the ground that the witness ever answered the question.

6. The general grounds of the motion for a new trial are expressly abandoned in the brief of counsel for the plaintiff in error. Judgment affirmed.

LUKE and BLOODWORTH, JJ., concur.

>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Court of Appeals of Georgia, Division No. 2. ges up to July 11, 1919, that when he heard

1. Contracts 176(1) Construction for he went out to the plant three times, but court when unambiguous.

2. Trial 199-Instruction that there is no urer, who told him to get up some invoices, ambiguity in contract not error.

4. Certiorari 36-Questions must be raised not contain the words "in full payment," but below.

(105 S.E.)

of the magistrate and the terms of the con- | tomer, shows him the property, and interests tract of employment do not show an accord and satisfaction, and the following abstract from the charge of the trial court stated a correct principle of law:

"I charge you, along that line, that the fact that an employee, when he received a part of his wages, gave a receipt in full for payments, does not estop him to claim the balance, when, it appears that at the time he protested against the stoppage of a portion of his wages.' Ga. R. R. Co. v. Gouedy, 111 Ga. 310, 36 S. E. 691. 5. The evidence supported the verdict, and no error of law appears from the record. Judgment affirmed.

JENKINS, P. J., and STEPHENS, J.,

concur.

(26 Ga. App. 220)

E. W. GROVE REALTY CO. v. FORREST &
GEORGE ADAIR. (No. 11527.)

him so therein that he (the customer) finally buys it, A. is the real procuring cause of the sale, and is entitled to his commissions from the owner, although the deal is actually closed by B., another broker with whom the property was listed, where the only cause which induced the purchaser to close the deal with B., instead of with A., was a reduction of the price by the owner through B., which reduced price A. was not authorized by the owner to offer, and where the owner, before he pays any commissions to any one,

is notified of A.'s claim to the commissions as being the procuring cause of the sale. See, in this connection, Graves v. Hunnicutt, 8 Ga. App. 99, 68 S. E. 558, and citations.

2. None of the excerpts from the charge of the court, complained of, when considered in the light of the entire charge and of the facts of the case, requires a reversal of the judgment below.

3. The verdict was authorized by the evidence, and the court did not err in overruling

(Court of Appeals of Georgia, Division No. 1. the motion for a new trial.

Jan. 27, 1921.)

(Syllabus by Editorial Staff.)

Brokers 55(2)-One interesting customer held procuring cause of sale, though another broker effected the sale.

Judgment affirmed.

BROYLES, C. J., and BLOODWORTH, J.,

concur.

Where one of two or more brokers with LUKE, J. (dissenting). I do not agree to whom land was listed for sale found a custom- the judgment in this case because, where a er, showed him the property, and interested principal lists property for sale with several him therein, he was the real procuring cause of brokers (and with no one of them exclusivethe sale, though the deal was closed by anoth-ly), and a sale to the alleged customer of er broker solely because the owner offered a one of them is actually closed by another, reduction of price through such other broker which the first broker was not authorized to the broker claiming to have effected the sale, offer; the owner being notified of the first bro-in order to recover his commissions for so ker's claims before he paid commissions to any doing, must show not only that during his agency he was the procuring cause of the sale, but also that the principal in some way showed bad faith towards him in the trans

one.

Luke, J., dissenting.

Error from Superior Court, Fulton Coun- action. Doonan v. Ives, 73 Ga. 295; Gresham ty; W. D. Ellis, Judge.

v. Connally, 114 Ga. 906, 41 S. E. 42; Floyd v. Boyd, 16 Ga. App. 43, 48, 84 S. E. 494, body of the decision. In this case it appears that the principal had no knowledge whatever of the agent's negotiations with his prospective customer until after it had

Anderson, Rountree & Crenshaw, of At- entered into a binding contract through anlanta, for plaintiff in error.

other agent to sell the place to that custom

Rosser, Slaton, Phillips & Hopkins, of At-er. lanta, for defendant in error.

No bad faith is shown on the part of the principal, and it follows, in my opinion, that the verdict in favor of the plaintiff was PER CURIAM. 1. Where an owner of without evidence to sustain it, and that the realty lists it for sale with two or more bro- judge erred in overruling the general kers, and A., one of the brokers, finds a cus-grounds of the motion for a new trial.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes