Thigpen v. Sam Weichselbaum Co.

Court of Appeals of Georgia

Thigpen v. Sam Weichselbaum Co.

116 S.E. 209, 29 Ga. App. 566, 1923 Ga. App. LEXIS 119

CourtCourt of Appeals of Georgia

DecidedFebruary 14, 1923

Docket13321

StatusPublished

Cited by1 cases

This text of 116 S.E. 209 (Thigpen v. Sam Weichselbaum Co.) 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

Thigpen v. Sam Weichselbaum Co., 116 S.E. 209, 29 Ga. App. 566, 1923 Ga. App. LEXIS 119 (Ga. Ct. App. 1923).

Pincite

Opinion

Stephens, J.

1. Where the obligor of a forthcoming bond seeks,- in a suit thereon by the obligee, to defend upon the ground that the property has been destroyed, he must show that the destruction of the property was caused by an act of God and without fault or negligence of himself. Young v. Waldrip, 91 Ga. 765 (18 S. E. 23).

2. In such a suit, the burden being upon the defendant to establish this [567]*567defense and to show affirmatively that the destruction of the property and his failure to produce it were the result of natural causes and without fault or negligence on his part, a bare proof of the destruction of the property, without more, establishes prima facie a violation by the defendant of his obligation.

Decided February 14, 1923. J. S. Adams, B. Earl Camp, for plaintiff in error. Ira S. Chappell, Alex. A. Burch, contra.

3. While in a suit by the obligee against the obligor on such a bond it is necessary for the plaintiff to allege facts sufficient to show prima facie a breach of the bond by the defendant, where the plaintiff, who was a deputy sheriff, alleges a destruction of the property as an excuse for his failure to advertise the same and as showing a breach of the bond by the defendant, in that the defendant has voluntarily, before time for performance, placed himself in a situation where he can not perform, such bare allegation that the property has been destroyed, without more, alleges a prima facie breach of the bond by the defendant. See, in this connection, Spence v. Coney, 97 Ga. 441 (25 S. E. 316) Early v. Hampton, 15 Ga. App. 95 (82 S. E. 669).

4. The plaintiff’s petition setting out a prima facie breach of the obligation, the trial judge in the city court erred in dismissing the same, and the judge of the superior court did not err in sustaining the plaintiff’s certiorari. Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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Stephens, J.

1. Where the obligor of a forthcoming bond seeks,- in a suit thereon by the obligee, to defend upon the ground that the property has been destroyed, he must show that the destruction of the property was caused by an act of God and without fault or negligence of himself. Young v. Waldrip, 91 Ga. 765 (18 S. E. 23).

2. In such a suit, the burden being upon the defendant to establish this [567]*567defense and to show affirmatively that the destruction of the property and his failure to produce it were the result of natural causes and without fault or negligence on his part, a bare proof of the destruction of the property, without more, establishes prima facie a violation by the defendant of his obligation.

Decided February 14, 1923. J. S. Adams, B. Earl Camp, for plaintiff in error. Ira S. Chappell, Alex. A. Burch, contra.

3. While in a suit by the obligee against the obligor on such a bond it is necessary for the plaintiff to allege facts sufficient to show prima facie a breach of the bond by the defendant, where the plaintiff, who was a deputy sheriff, alleges a destruction of the property as an excuse for his failure to advertise the same and as showing a breach of the bond by the defendant, in that the defendant has voluntarily, before time for performance, placed himself in a situation where he can not perform, such bare allegation that the property has been destroyed, without more, alleges a prima facie breach of the bond by the defendant. See, in this connection, Spence v. Coney, 97 Ga. 441 (25 S. E. 316) Early v. Hampton, 15 Ga. App. 95 (82 S. E. 669).

4. The plaintiff’s petition setting out a prima facie breach of the obligation, the trial judge in the city court erred in dismissing the same, and the judge of the superior court did not err in sustaining the plaintiff’s certiorari. Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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Bluebook (online)

116 S.E. 209, 29 Ga. App. 566, 1923 Ga. App. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thigpen-v-sam-weichselbaum-co-gactapp-1923.

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