Ga. 785, 48 S. E. 318. "If upon demurrer the court has decided upon the merits of the cause, the judgment may be pleaded in bar of another suit for the same cause." Civ. Code 1895, § 3744. See Fain v. Hughes, 108 Ga. 537, 33 S. E. 1012; Satterfield v. Spier, 114 Ga. 132, 39 S. E. 930; Ferguson v. Carter, 8 Ga. 524; Perry v. McLendon, 62 Ga. 598; Greene v. Central Ry. Co., 112 Ga. 860, 38 S. E. 360, and cit.

Judgment affirmed. All the Justices concur.

(125 Ga. 96)

SALTER et al. v. CITY OF COLUMBUS. (Supreme Court of Georgia. March 23, 1906.) INJUNCTION-CRIMINAL PROSECUTIONS.

Courts of equity will not enjoin or prevent the institutions of prosecutions for violations of penal municipal ordinances, nor inquire into the validity or unreasonableness of ordinances making criminal the acts for the doing of which prosecutions are threatened.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 178, 179.]

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; Wm. A. Little, Judge.

Bill by R. L. Salter and others against the city of Columbus. Judgment for defendant, and plaintiffs bring error. Affirmed.

Henry C. Cameron, S. T. Pinkston, and S. B. Hatcher, for plaintiffs in error. T. T. Miller, for defendant in error.

BECK, J. The Cook Brewing Company, a nonresident corporation, and Salter, its agent, filed an equitable petition in the superior court, asking that the defendant be enjoined from arresting Salter and the drivers of certain of the brewing company's delivery wagons because of the nonpayment of a municipal license tax assessed against Salter as a dealer in malt liquors within the corporate limits of the city of Columbus. It appears, from the petition, that the plaintiffs have a place of business in the state of Alabama, just across the Chattahoochee river from Columbus, and that they sell quite a quantity of beer to citizens of the city of Columbus, and deliver the beverage to such purchasers in the brewing company's own delivery wagons, "direct to the purchasers in the original packages, and only as purchased and when purchased, never retailed or peddled from the wagon." Upon his failure to pay the tax assessed against him as a liquor dealer, Salter was arrested and fined by the mayor of the defendant municipality. He is dissatisfied with the decision of the mayor, however, and is now seeking to review and reverse the same in the superior court by means of a writ of certiorari. It is also alleged in the petition that the mayor and police officers of the defendant city still threaten to arrest Salter and the drivers of the delivery wagons whenever they attempt to deliver their commodity to persons

within the city of Columbus without paying the above mentioned tax, and petitioners pray that the said officers and officials be enjoined from so doing, or in any wise interfering with petitioner's business; and for such other and further relief as they may be entitled to. The defendant demurred upon the usual ground, that no cause of action was alleged, and upon other grounds. The demurrer was sustained, the petition dismissed, and the petitioners excepted.

This case falls squarely within the rule laid down in Paulk v. Sycamore, 104 Ga. 24, 30 S. E. 417, 41 L. R. A. 772, 69 Am. St. Rep. 128, which was followed in Bainbridge v. Reynolds, 111 Ga. 758, 36 S. E. 935. In the former case Mr. Justice Fish, now Chief Justice, in a well-considered opinion, supported by reason and authority, reached the conclusion that courts of equity will not enjoin or prevent the institution of prosecutions for violations of penal municipal ordinances, nor inquire into the validity or reasonableness of ordinances making criminal the acts for the doing of which prosecutions are threatened. Hence, the ordinance here being purely penal in its character, with reference to the means provided for its enforcement, the court below could not have rightfully inquired into its fairness or validity, nor determined whether or not the petitioners, whose place of business was without the state, have laid themselves liable to be taxed by the city of Columbus by selling and delivering their goods within its corporate bounds. Moreover, it is said in the petition that one of the plaintiffs is already seeking to test the validity of a fine imposed upon him under authority of this ordinance, in the superior court, by a writ of certiorari directed against the tribunal which imposed it, and when that proceeding comes on to be heard, he may then, appropriately and in good season, attack the ordinance upon any ground he desires. A court of equity, however, is not his proper vehicle for relief, if he is entitled to any.

Judgment affirmed. All the Justices con

Equity will not reform a written contract. unless the mistake is alleged and proved to be the mistake of both parties. Where the instrument does not really represent the truth of the agreement as understood by one of the parties, it will not be reformed on the ground of the misapprehension of one of the parties, though it may be rescinded.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Reformation of Instruments, §§ 7478.]

2. LANDLORD AND TENANT STRUCTION.

LEASE

CON

Where the leased premises are described in the contract as "the lands near Marshallville, Ga., known as the C. S. Johnson place,

the lessee is entitled, not only to the use of the cultivable land for the purpose of cultivation, but he is also entitled to the fruit of the trees on the rented premises maturing during the existence of the lease; and it was not error to instruct the jury that the contract should receive this interpretation, unless the contract should be reformed because, by mutual mistake, an exception of the fruit was omitted from the contract.

3. TRIAL-INSTRUCTIONS-PREPONDERANCE OF

EVIDENCE.

The charge on the subject of preponderance of evidence was without substantial error. (Syllabus by the Court.)

Error from Superior Court, Macon County; Z.A. Littlejohn, Judge.

Action by M. B. Quiggle against J. B. Vining. Judgment for defendant, and both parties bring error. Affirmed on main bill of exceptions; cross-bill of exceptions dismissed.

This was an equitable proceeding, one of the purposes of which was to reform a written contract in the form of a rent note given by the defendant to the plaintiff. The contention of the plaintiff was that under the agreement of rental the defendant was to have the privilege of cultivating such lands on what was known as the "C. S. Johnson Place" as were suitable for the planting of crops, upon the same terms of rental as had been agreed on between them for several years prior to 1900, viz., the payment of $50 by the defendant, who obligated himself to tend a valuable peach orchard on the place, the fruit of which was reserved by the plaintiff and was to be marketed for her exclusive benefit. The plaintiff charged the defendant with having practiced a fraud upon her in claiming the fruit crop for the year 1900, inasmuch as he so understood the agreement when he signed the rent note for that year, which contained no reservation of the fruit, but was similar to the rent notes given in past years by him upon this distinct understanding. He admitted that he had for a number of years rented the place on these terms, but he contended that he had explicitly given notice to the plaintiff's agents, in the fall of 1889, that he would not rent the place for 1900 unless he got the fruit from the orchard; and when the rent note for that year was sent to him by them for his signature and return he understood the contract to be as therein expressed, accordingly claimed the fruit when it matured, and refused to allow the agents of the plaintiff to gather it for her benefit. The evidence bearing upon the contested issue in the case was conflicting, and the jury returned a verdict in favor of the defendant. The plaintiff's motion for a new trial was overruled, and she excepted. By cross-bill of exceptions, the defendant complains of the overruling of his demurrer to the plaintiff's petition as finally amended.

Hall & Wimberly, Greer & Felton, and J. E. Hall, for plaintiff in error. M. Felton Hatcher, for defendant in error.

EVANS, J. (after stating the facts). 1. The original petition was open to the criticism

that the plaintiff sought to modify by parol an apparently complete and valid written contract. Appreciating this infirmity, the plaintiff voluntarily amended the petition by alleging that both parties understood that the rent contract did not speak the true intention of the parties, and by praying that the writing be reformed so as to exclude the fruit from the operation of the contract of rent, and thus make the writing represent the contract as actually agreed upon by both parties. The plaintiff is not seeking to rescind, but to reform, a contract. Equity will not reform a written contract, unless the mistake is alleged and proved to be the mistake of both parties. Where the instrument does not really represent the truth of the agreement as understood by one of the parties, it will not be reformed on the ground of the misapprehension of one of the parties, though it may be rescinded. Civ. Code 1895, § 3982; Werner v. Rawson, 89 Ga. 619, 15 S. E. 813. The defendant was entitled to all the benefits afforded by the instrument as signed, unless his agreement was to rent the place exclusive of the fruit, and by mistake of both parties the exclusion of the fruit from the operation of the rent contract was omitted. If the writing represented the contract as the defendant understood it, of course it could not be reformed in accordance with the plaintiff's conception of it. This view of the law was submitted to the jury, and the exceptions to the various excerpts of the charge on this subject are without merit.

2. A plain and unambiguous contract is always to be construed by the court, and no portion of such a contract should be left for construction by the jury. Kehoe v. Hanley, 95 Ga. 322, 22 S. E. 539. It was never contended by the plaintiff that the rent note was ambiguous or uncertain as to its meaning. Her contention as expressed in the pleading was that the writing did not contain the actual agreement between herself and the defendant; that the fruit was reserved to her. but by mistake this reservation was omitted from the written contract. The court charged: "Now it is a question for you to determine in this case, and an issue that is made, or one of them, as to the meaning, or what the parties intended was the meaning, of this description in this contract of the property, 'the lands near Marshallville, Ga., known as the C. S. Johnson place.' Under the terms of the contract, gentlemen, with that expression, nothing else appearing, the defendant in this case, by that rent contract, would secure the use of those lands, together with such crops as might be produced there by his efforts upon the cultivatable lands, and also the fruit that was upon the lands. By the terms of that contract, without more, it would cover and include the fruit." This charge is assailed as incorrectly interpreting the meaning of the written contract, and be cause the words descriptive of the rented premises, as construed by the court, amounted to an expression of opinion that such con

struction was to be preferred by the jury to the oral testimony as to what was the actual agreement. Nothing which the judge said in this extract from his charge can fairly be said to be an expression of opinion on the weight of evidence. The court construed. and properly so, the written contract as giving the lessee, not only the right to use the cultivatable lands, but also the enjoyment of the fruit of the trees growing on the rented premises and maturing during the tenancy. The court also instructed the jury that if the fruit was excepted in the agreement to rent, but by mutual mistake the exception was left out of the written contract, the defendant would not be entitled to the fruit.

3. The court charged: "You may also take into consideration the greater number of witnesses that may testify upon one side or the other of the contested issue. However, the preponderance of evidence is not necessarily with the greater number of witnesses, but it is that superior weight of evidence that inclines the minds of honest, impartial ju- | rors to accept and believe one side in preference to the other, regardless to the number of witnesses from which it may be derived." This charge is said to be erroneous, because it instructed the jury to arrive at what was the preponderance of the evidence without considering the number of witnesses from which that preponderance may be derived. The charge was not erroneous for the reason assigned. Civ. Code 1895, §§ 5145, 5146.

The evidence was conflicting, but was sufficient to uphold the verdict.

Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed. All the Justices concur.

(125 Ga. 85)

GEORGIA R. & BANKING CO. et al. v. ANDREWS.

(Supreme Court of Georgia. March 23, 1906.) 1. WITNESSES-IMPEACHMENT-EFFECT.

In a suit against a railroad company for damages resulting, from the negligent killing of live stock by the agents of the company, engaged in the operation of its locomotives, cars, and other machinery, testimony of the engineer was offered by the defendant to the effect that as soon as the animals were seen, he applied the brakes and reversed the engine. For the purpose of contradiction, the plaintiff testified that on the morning after the injury, the engineer admitted that he "did not have time to apply anything at all." Such testimony of the plaintiff was contradictory of the testimony of the engineer upon a material point, and if the jury believed it and the engineer was successfully impeached upon that point, it was in their province to disregard his entire testimony.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1265, 1266.] 2. RAILROADS-INJURY TO STOCK-SAME-DEFENSES BURDEN OF PROOF.

In such a case, the defendant does not support the burden of proof which arises by force of the statute upon proof of the injury by the testimony of the fireman alone, it appearing that he did not see the animals at all, and could not say of his own knowledge at what time the engineer actually saw them, and

whether or not he applied the brakes, and reversed his engine with due diligence after seeing them.

(Syllabus by the Court.)

Error from Superior Court, Baldwin County; H. G. Lewis, Judge.

Action by C. T. Andrews against the Georgia Railroad & Banking Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Jos. B. & Bryan Cumming and Allen & Pottle, for plaintiffs in error. Hines & Vinson, for defendant in error.

ATKINSON, J. 1, 2. This was an action on the case for damages alleged to have been sustained by reason of the killing of a certain mare and a colt, the property of the plaintiff, by the negligence and carelessness of the servants of the defendant (a railroad company) in the running of its locomotives, cars, and other machinery. The plaintiff proved the killing, value, and ownership of the animals mentioned, and rested upon the statutory presumption of negligence. The defendant assumed the burden and attempted to prove that its agents and servants had "exercised all ordinary and reasonable care and diligence," and therefore the injury did not result from the negligence of the defendant.

The engineer in charge of the train testified, among other things: "I couldn't stop. It was night-about 1 o'clock. The train was a through freight, running about 25 miles an hour. I had air brakes on the engine and throughout the train. I don't know of any better method of stopping a train quickly than air brakes. We had a headlight that night and it was burning at the time I hit the stock. At that time I was on my box, in position on the engine where I belonged--on the right side of the engine looking ahead. When I first saw the animals I was about 75 yards of them. When I first saw them I applied my brakes, and reversed my engine. There was nothing else I could have done to have stopped that train. The mare and colt were together at the time, standing on the track. Neither of them ran at the approach of the train. The air brake appliances, which were throughout the train and on the engine that night, were working all right, and when I applied them at the time they worked all right and slowed up the train, but it was impossible to stop within the distance. It was a straight track. It was not possible to see the stock earlier than I did. There was nothing to keep me from seeing it except the darkness. With

was there and I stopped. Of course, we talked of it. I didn't make any statement that I made no effort to stop the train. I did all that was possible to avoid striking the stock, and I never made any statement that I did not do it."

The fireman testified: "On the night of this accident I was on the engine, and was fixing the fire at the time the stock was hit. I don't remember about the makeup of the train, but it had air brakes on the engine and train. On that particular occasion the engineer put on his air brakes and reversed his engine. It slowed the train up some, but it didn't stop before we hit the stock. We had an oil headlight that night, which was in good condition. I suppose we could see something the size of a horse or colt by means of the headlight about 75 yards. After the engineer saw the stock there was nothing that he could have done that he did not do, looking to the stopping of the train. I didn't see the stock at all myself. We were running about 25 miles an hour. * The train didn't stop after striking the stock. The first thing that attracted my attention was the engineer putting on the brakes and reversing his engine. An oil headlight is the only kind that is used on the Georgia Railroad. I don't know anything about the electric light. They don't use them on the Georgia Railroad."

In rebuttal the plaintiff testified: "The train stopped the next morning, and Mr. Anderson, the engineer, got off near the scene of the accident. I waved the train down and had a conversation with Mr. Anderson, and he told me he was right on them before he saw them, and didn't have time to apply anything at all. The words that Mr. Anderson said to me were that he was right on the stock before he saw them and didn't have time to apply anything." The engineer, being recalled, testified in reference to the statement of Mr. Andrews: "As to the statement that I never attempted to stop, I did everything to stop. I saw them as soon as they could be seen, and I did everything that a man could have done to avoid the accident. I didn't make any statement to Mr. Andrews that I didn't have time to apply anything.

I never had any such conversation as Mr. Andrews reports, that I didn't try to stop and didn't attempt to stop."

From the evidence quoted, it will be seen that the engineer, who alone saw the stock, says: "When I first saw them I applied my brakes and reversed my engine." The effort to stop the engine is the gist of the defense upon which the defendant relies to defeat the plaintiff's recovery. Upon that point, the plaintiff as a witness in his own behalf swears to a statement which the engineer made, to the effect that he "didn't have time to apply anything." In reply to this testimony, the engineer again testified: "I never had any such conversation as Mr. Andrews reports, that I didn't try to stop and didn't attempt to stop." Thus an issue was present

ed between the witnesses. Counsel for defendant insists that the statement of the plaintiff was not a contradiction of the engineer's testimony, and if it amounted to a contradiction, the same was not entitled to consideration, except for purposes of impeachment, citing upon the latter point, Watts v. Starr, 86 Ga. 392, 12 S. E. 585; Cen. R. Co. v. Maltsby, 90 Ga. 630, 16 S. E. 953; Green v. State, 95 Ga. 463, 22 S. E. 289; and Jones v. Harrell, 110 Ga. 373, 35 S. E. 690. The testimony of the plaintiff is directly contradictory to the testimony of the engineer to the effect that he did apply the brakes. As to the effect of the evidence being entitled to no consideration, except for impeachment, the point is well taken, but admitting that it could have no other effect it was in the province of the jury to say whether or not the witness was successfully impeached. The matter testified about was material to the issue on trial, and if the jury found that the witness was successfully impeached, they could then disregard his entire testimony. Code 1895, § 5295; Mitchell v. State, 110 Ga. 272, 34 S. E. 576. (2) The verdict being against the defendant, it will be presumed that such was the reasoning and finding of the jury.

But counsel insists that, even if the engineer's testimony is disregarded, there was still left the testimony of the fireman (whom no effort was made to impeach), which completely establishes the defense to the action. We do not so construe that testimony. The fireman was at work, and did not see the animals at all. It was, therefore, impossible for him to say at what time the animals were seen by the engineer, or that he had applied the brakes and reversed the engine as soon as they were seen. It is true that the fireman says: "After the engineer saw the stock, there was nothing he could have done that he did not do, looking to the stopping of the train." This is a mere conclusion upon the part of the witness, and ought not have influenced the finding of the jury. For the reasons already given, the testimony of the fireman falls short of sustaining the defense made by the defendant. Upon the whole the verdict is supported by the evidence, and the court did not commit error in refusing to grant a new trial.

Judgment affirmed. All the Justices concur,

(125 Ga. 72)

THOMAS v. CLARKSON. (Supreme Court of Georgia. March 23, 1906) 1. LIMITATION OF ACTIONS-WHAT LAW GOVERNS-CONTRACTS.

Where a contract which was made and intended to be performed in another state is attempted to be enforced by suit thereon in the courts of this state, the statutes of limitation of Georgia will be applied, rather than those of the other state; and the latter, being irrelevant, will not be admitted in evidence.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, §§ 4-8.]