*1 633). Breman, v. Wolfe Defendant’s in his answer and deposition admissions (R. 17, established that this novation occurred. during September, Thus was no period there default, but an at 30-day per additional contract ton $330 to carry period with a default September, thereafter 8, 30 days under Rule Section 1.
4. in No instructions as to were shipment given September, and Gold Kist did exercise any option 8, 1, under in days Rule Section October 3 working within period. contract following thereby contract was extended in default for 30 days October. on or about 19,1973, October 15 to October defendant refused to take delivery, any instructions, or to shipping advised plaintiff it null considered the contract and void under 8, Rule Section 1.
5. At this since had point, defendant breached the contract, could plaintiff contract, elect to sue on the charge defendant difference between market price ton, per per proceeded ton and it do. $150 $330 which There is no dispute ton was the per price market $330 at that time.
6. The lower did not in granting summary err $18,000. favor it awarding Deen, Stolz, J., Judgment J.,P. concur. affirmed. Argued 30, 24, Decided November Rehearing denied December 1975.
Gerstein, Chestnut, Carter & Michael J. King, appellant.
Alston, Gaines, Stokes, TV, Miller & S. James appellee. TAYLOR GEORGIA POWER COMPANY.
Deen, Presiding Judge.
Taylor owned land one side contiguous of which was to a way. railroad Power Georgia Company initiated proceeding condemn an easement for a telephone parallel line A the railroad tracks. three-assessor award valued the condemnee’s actual and $51,010, at consequential damages based on his primarily position that the easement large part destroyed value of the condemnee’s land *2 remaining by denying access to the railroad. The condemnor then appealed to the Superior and, trial, Court of Spalding County prior to amended its notice original of condemnation by placing the duty on the at its expense, own to move any poles relocate or lines might which the future be necessary to allow the construction of a railroad or spur side track onto the remaining property. allowance of the amendment held in Taylor Co., v. Ga. Power was 129 (198 701) Ga. App. 89 SE2d not to be objectionable as a dismissal of a part the interest sought, but its effect was only "to limit the condemnor’s use of the land condemned” and an amendment proper "where its allowance does not adversely substantially affect the condemnee’s rights.”
The condemnee then sought to amend his petition by a adding defense to the effect that he had sought such a limitation of interest instance; the first the condemnor had refused to grant unless he accepted the condemnor’s valuation of and that plus action the present amendment, after he had been put great trouble and expense to defend against easement, unrestricted inwas bad faith and him entitled to attorney stricken, fees. This defense and, was after verdict and judgment, is enumerated as error. Held:
1. The fact the unrestricted easement plus consequential damages was valued by three assessors at $51,010 whereas the restricted easement by was valued $3,000 at jury plus no consequential damages is very good that, evidence spite decision, our former effect of the condemnor’s amendment restricting purposes of its easement did indeed substantially affect the relative rights parties. Additionally, circumstances set out in the stricken defense are amply sufficient to raise a jury issue as to bad faith on the part of the condemnor.
Nevertheless, an as intermediate appellate 46 Court,
bound the decisions of the Supreme we have no option but to affirm. It has been held since Streyer (1) (15 Georgia S. & F. R. 90 56Ga. SE that the burden of proof is on the condemnor to show damages, with correlative and conclude argument. The effect of this is to make it a plaintiff and Brooks, the condemnee a defendant. Ga. Power Co. v. (62 (4), Ga. 406 183); Hwy. State Bd. v.Ga. (3) 885). Shierling, Ga. If the defendant, condemnee is in fact a then he is precluded from obtaining fees under provisions § of Code 20-1404 which applies only plaintiffs where is in bad "A faith. defendant defendant cannot avail himself of the provisions § of Code 20-1404, which provides as expenses follows: 'The litigation are not generally part allowed as a of the damages; but if the defendant has acted in faith, bad has been stubbornly litigious, or has caused the unnecessary trouble and expense, the jury may allow ” Pate, them.’ King v. Ga. In view of these Supreme Court decisions we are unable to *3 hold, as would, we otherwise the condemnee has a case alleged jury submission on the bad faith-attorney fee issue. Ga.,
The case of Pickett v. F. & A. R. 98 Ga. on which the appellant relies is not technically applicable because there the condemnee was the plaintiff in an injunction action, although this decision and in 214 decision Ga. 263 transferring the bad faith-attorney fee issue to this court after (thus the condemnor sought to dismiss rendering in the everything injunction action except attorney fees moot) does establish that where the condemnee can leap the versus barrier inmay case, a proper where the condemnor has proceeded faith, in bad recover his expenses litigation. even in Pickett the attorney fees sought were for prosecuting suit, the injunction for defending against the eminent domain action.
2. The requested instructions which the judge failed to give to the jury were inapplicable after the issue of access to the railroad had been eliminated. No reversible error appears. J., Evans, specially. concurs Judgment affirmed.
Stolz, J., only. in the concurs 26, Argued 30, Decided November Rehearing 11, denied December Sims, Sims, for appellant. R. & Marshall Seay Owen, Jr., C. Beck, Goddard, Murray, J. Owen & Murray, A. for appellee. Samuel Judge, concurring specially. Evans, I it to add this proper concur but feel judgment, concurrence: special exercised, domain is
1. Where the of eminent right and close proof right who has the burden of to the argument jury? exercised, 2. Where the of eminent domain is right taken property addition to the value of the right has the condemnee fees?
3. The federal state government are take the of a government granted right property citizen, but not until private just 2-301; § Ann. compensation has first been See Code paid. Bowers v. Fulton County, it is that the individual must suffer where theory citizenry
shown that weal and the as a whole public matter away will benefit from his no how taking loath he be to may up. developed This of eminent domain has been
and expanded, persons and on the that certain theory corporations principally public exist for the benefit of (a myth many respects). public Railroads other utilities also allowed to take the citizen’s him, away from no matter how much to his And disliking. *4 do, just they as the state and national must government tendered) (or to first have to required they paid show for his just compensation citizen property. cases,
5. In
has the burden of
This is
proof?
such
who
has that burden is
litigant
because the
who
important,
allowed
the privilege
opening
closing
arguments
to the jury. See Harrison v. Young,
6. But if it is admitted that condemnor has the right to condemn, and the principal issue is the value of the that sought be taken away from the condemnee, then the condemnee has the burden and most certainly should have the right I conclude. repeat there should not be a hard and fast rule that the condemnor has the case, burden every because that simply is not true. In every case at law how much does the defendant have to admit before he gains the burden of proof? When he admits that the condemnor has the right to condemn his isn’t that enough to satisfy requirement admitting prima facie I say case? it is. And, most important, is the condemnee entitled to irrespective fees of whether the condemnor has acted in bad faith? The Constitution of the United States and the Constitution of Georgia are supposed protect the citizen in the ownership of his property. §§ Code Ann. 1-805, 1-815, 2-102, 2-103, 2-113, 2-301.
8. Finally, both Constitutions plainly provide that private property shall not be taken public use without just and adequate compensation first being paid before eminent domain is used. § Code Ann 2-301 clearly states: "Private property taken, shall not be damaged, public purposes, without just and adequate compensation being first . .” paid.
9. Let us
A
suppose that
has a piece of property that
sell,
does not want
and which is of the value of
$50,000. Condemnation
is instituted
places
and he
ten
witnesses on the stand who testify
they
know the
*5
the particular
in this
and that
vicinity
of property
value
has
$50,000.
only
But the condemnor
is worth
property
is
and the landowner
$7,000
him
the property,
offered
for
suppose
case. Let us
to
the
employ
try
to
counsel
required
$50,000.
he is
he receives verdict and
he
$50,000
has to
the
because
keep
not allowed to
entire
services
whose
attorney,
it to
able
without
give 20% of
his
$7,000.
he pays
more
When
have
than
may
gotten
he
not
$40,000,
"just
is
and
$10,000
left with
attorney
to his
him
been
to
and
compensation”
paid
and
has not
But the
under-foot.
trampled
the
has been
Constitution
you
your lawyer
and
whole
says
paid
condemnor
we
$50,000.
any part
own
of
lawyer
property
didn’t
Constitution,
a
is
it. Is
when
citizen
abiding by
paid
made
his
in
to be
up part
to
of
order
in
and
same,
"just
to receive
true value of
and
order
adequate compensation”
property?
his
v. Fulton
are
familiar with Bowers
10. We
quite
(183
347),
wherein
County, 227 Ga.
SE2d
that
fees are
Georgia
Court of
has held
Supreme
cases;
in
and we are familiar with
not collectible
such
(1) (15
v.
S. & F. R.
But we are not bound
those decisions.
made
us. That was
justice
binding
quite
is
on
defeats
June, 1975,
Supreme
22nd
clear on the
of
when
day
in
that cannot be
out
Georgia spelled
language
misunderstood,
Hill,
through
Justice
speaking
839),
631, 632,
pp.
Hall
binding Supreme Appeals Georgia. principle on the Court of If ofstare (being precedents) decisis bound the earliest is not binding Supreme Georgia, binding on the Court of it is not Appeals Georgia. Supreme on the Court of If the Georgia disregard any authority Court of stands in the can earlier way rendering justice, then the Court of Appeals disregard any authority, just can such earlier as as Supreme justice just Court can and does. We love much as does the Court and we have the same *6 right by justice by paths to reach the same that are traveled Supreme justice, reaching by using the same rules laid down Court for such high purposes. and noble
50840. BELL v. ALBANY, LOOSIER OF INC. Clark, Judge. Appellant place seeks to have our court transactions under the Retail Instalment and Home Solicitation Sales category Act in appellate the same verboten as those rulings which have ruled that lenders who violate the charges Industrial Loan Act forfeit both finance principal. represents This the main contention of appellant. Additionally, appellant attacks the complaint. below to amend its The other item presented appellant’s contention that the trial court ruling against erred in defendant’s counterclaim based on alleged Regulation an violation of Z of the Federal Truth-in-Lending Act. Appellant-defendant ("buyer”) separate made three
purchases rug, (a single goods items of household stereo, refrigerator) operated by from the furniture store ("instalment seller”). plaintiff-appellee At the time of purchase each separate the customer executed retail upon prepared by instalment sales contracts forms Georgia Retail Furniture Dealers Association. The respective contracts were dated 26, 1973, January 8, 1973, December provided 12, 1974. Each contract monthly payments. for twelve instalment In (rug) (refrigerator) connection with the second and third purchases and execution of the second and third contracts