Kenney v. Armour Fertilizer Works

Court of Appeals of Georgia

Kenney v. Armour Fertilizer Works

131 S.E. 915, 34 Ga. App. 820, 1926 Ga. App. LEXIS 60

CourtCourt of Appeals of Georgia

DecidedFebruary 4, 1926

Docket15300

StatusPublished

This text of 131 S.E. 915 (Kenney v. Armour Fertilizer Works) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kenney v. Armour Fertilizer Works, 131 S.E. 915, 34 Ga. App. 820, 1926 Ga. App. LEXIS 60 (Ga. Ct. App. 1926).

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Opinion

Bloodworth, J.

The facts will be found in the original opinion in this case, 33 Ga. App. 126.

In the brief of plaintiff in error is the following: “The controlling question before this court for determination is: Was the defendant surety under the uncontroverted facts wholly 'discharged’ from liability on the note by reason of plaintiff’s breach of its contractual duty to keep the cotton insured, or merely 'relieved’ pro tanto of his obligation to pay to the same extent as would be his principal were she a party to the suit?” This court held that under the pleadings and the evidence the surety was relieved from [821]*821all liability. .By writ of certiorari the case was carried to the Supreme Court, and that court reversed the judgment of this court, and held that the surety was discharged pro tanto only. The headnote to that opinion is made a headnote to this one. For the full opinion of the Supreme Court see 161 Ga. 477 (131 S. E. 168).

Under the ruling of the Supreme Court in this case and the facts as shown by the record, a verdict disallowing any recovery by the defendant on his counter-claim was demanded. Hence, if there were any errors in the charge, or in the refusal to permit counsel for the defendant to open and conclude the argument before the jury, the errors were harmless and do not require another hearing of the case. Moreover, as to the last point, defendant’s counsel in their brief make the following statement: “If the defendant is not to be given an opportunity to recover on his cross-action against the plaintiff the proceeds of this indefensible sale of his cotton, then we wish to be understood as abandoning the last (11th) ground of his motion.” This ground of the motion complained of the refusal of the court to permit counsel for the defendant to open and conclude the argument before the jury.

Under the ruling of the Supreme Court it is ordered that the prior judgment of this court be vacated; and the judgment of the superior court is

Affirmed.

Broyles, G. J., and Luke, J., concur.

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Bloodworth, J.

The facts will be found in the original opinion in this case, 33 Ga. App. 126.

In the brief of plaintiff in error is the following: “The controlling question before this court for determination is: Was the defendant surety under the uncontroverted facts wholly 'discharged’ from liability on the note by reason of plaintiff’s breach of its contractual duty to keep the cotton insured, or merely 'relieved’ pro tanto of his obligation to pay to the same extent as would be his principal were she a party to the suit?” This court held that under the pleadings and the evidence the surety was relieved from [821]*821all liability. .By writ of certiorari the case was carried to the Supreme Court, and that court reversed the judgment of this court, and held that the surety was discharged pro tanto only. The headnote to that opinion is made a headnote to this one. For the full opinion of the Supreme Court see 161 Ga. 477 (131 S. E. 168).

Under the ruling of the Supreme Court in this case and the facts as shown by the record, a verdict disallowing any recovery by the defendant on his counter-claim was demanded. Hence, if there were any errors in the charge, or in the refusal to permit counsel for the defendant to open and conclude the argument before the jury, the errors were harmless and do not require another hearing of the case. Moreover, as to the last point, defendant’s counsel in their brief make the following statement: “If the defendant is not to be given an opportunity to recover on his cross-action against the plaintiff the proceeds of this indefensible sale of his cotton, then we wish to be understood as abandoning the last (11th) ground of his motion.” This ground of the motion complained of the refusal of the court to permit counsel for the defendant to open and conclude the argument before the jury.

Under the ruling of the Supreme Court it is ordered that the prior judgment of this court be vacated; and the judgment of the superior court is

Affirmed.

Broyles, G. J., and Luke, J., concur.

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Bluebook (online)

131 S.E. 915, 34 Ga. App. 820, 1926 Ga. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenney-v-armour-fertilizer-works-gactapp-1926.

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