Savannah morning news. [volume] (Savannah) 1868-1887, 1883-05-04

Decisions Rendered in Cases from the
Eastern Circuit-The City and Sub
urban Railway Suit.
The following opinions in cases from
the Eastern Circuit were handed down
from the Supreme Court in session at At
lanta on Tuesday, Hon. james jackson,
Chief Justice, and Martin j. Crawford
and Samuel Hall, Associate Justices, pre-
siding:
City and Suburban Railway of Savannah
vs.. Brauss. Case from City Court OF
Savannah. Actions. Contracts. Torts.
Damages. Verdict. New trial
HALL. j.
l. Wrongs are divided into criminal
and civil, and the latter are subdlylded into
the two classes Of wrongs, eX contractu
and eX delicto, the former being such as
arise out of the violation of private con-
tract, the latter. commonly called torts,
being such as spring from intrac-
tiOns Of the great social o0hgaton by
which each member of the State Is bound
to do hurt to no man. IL contract I'M
poses a legal duty upon person, the
neglect of that duty is tort founded
upon contract. In such case the Ia
bility arises out of a breach OF duty Incl
dent to and created by the contract, but Is
extent necessary to raise the duty. The
tort consists in the breach of duty.
Ca. Private duties may arise from
statute or flow from relations created by
contract express or implied. The viola
ton of any such specific duty accom-
panied with damage gives a right of ac-
ton. Code, 1854.
(b). This is not suit to enforce n con-
tract. Both the counts in the declaration
set forth the duty imposed by the contract
and alleged its breach in this respect.
They also alleged the facts that show the
wrong from which the law will presume
damage to flow. They aver no special
damage in any form, and do not even give
the terms Of the contract specifically. De-
PENDANT pleaded not guilty, plea appro-
pirate to an action eX delictO. The court
did not. therefore, err in refusing non
suit, on the ground that the action was
one ex cOntractu with no actual damages
shown.
,. The evidence for the plaintiff in an
action against street railway company
showed as follows: Plaintiff and his wife
entered a street car and presented to the
conductor tickets emitting them to ride
TO their point of destination. Plaintiff in
formed the conductor where he wished TO
90. Between the beginning and the end
Of the Journey it was necessary for
plaintiff to be transferred from one
car to another and he was trans
ferred personally by the conductor Of the
first car, but was given no transfer ticket,
nor did he know that one was necessary.
subsequently the conductor of the sec
Ond car called for transfer ticket or an
other payment of fare, and in default
thereof elected plaintiff and his wife re-
curing them to get of the car in the mud
a short distance from the street crossing
and in the presence of a number OF peO-
pie:
Held that the case was one authOriz-
ing exemplary damages in a suit against
the company. Code, 1866; 5o Ga, 2l6.
(a) The court below committed no error
in the rule Of damages laid down in his
charge. nor in Overruling objections to
the plaintiffs testimony that his feelings
were hurt. The law was correctly laid
down. and there was no abuse Of discre-
ton in refusing to set aside the verdict
and grant a new trial on the ground
that the damages found were excessive.
Code, SIS 1867, 294T.
fbl The verdict, in addition to stated
damages, having found attorneys fees
without specifying the amount thereof,
such portion of the verdict was illegal
and without meaning. 1t may, and doubt
less will, be disregarded by the court in
rendering its judgment thereon. Code,
SIS 3491, 1893: Steed V. Cruise. - al.
present term.
Judgment affirmed.
Lester q Ravenel; George \. Mercer,
for plaintiff in error; +. r. Richards, for
defendant.
jackson vs.. Nicholson. Equity. from
Chatham. Specific Performance. Equity
Contracts. Principal and Agent. Statute
of Frauds. Auctioneers.
This case was argued at the last term
and the decision reserved.
CRAWFORD, j.
In written contracts for land. where
they are certain, fair and capable of being
performed, equity will decree their per-
fOrmance. 20 Ga. 142: A. ID. 402; Story's
Eq. Jur. s 746; billiard on Vendors, 42l,
454.
"a This decision rests upon demurrer
to bill. How far the allegations may be
sustained by the proof, it is unnecessary
here to consider.
,. In sales at auction, the auctiOneer
may be considered the agent of both
parties 50 far as to dispense with any
other memoranda in writing than his
own entries. Code, $3.50.
3. Where the specific performance
would be decTeed at the instance Of one Of
the parties, will be so decreed at the in
stance of the other, although the relief
sought by him is merely in the nature Of
a compensation in damages or value. In
such cases the remedy, if it exists at all,
should be mutual and reciprocal as we'll
for the vendor as for the purchaser.
StOry's Eq. Jur., 723; Fry's Specific Pert,
marg. p. 10, S23.
Judgement reversed.
r. Z. Richards, J. J. Abrams, for plain
tiff in error; Lester q Ravenel, for de-
PENDANT.