Abrams v. State , 126 Ga. 591 ( 1906 )

Evans, J.

(After stating the facts.) Loss or damage to the hirer is an essential ingredient of the offense defined in the act of August 15, 1903. Millinder v. State, 124 Ga. 452. The accusation alleges that loss and damage occurred to the prosecutor in the sum of $90.14, which was made up of two items: $76.14 in money and $14 in provisions. The proof failed to sustain the charge that $76.14 in money was advanced to- the defendant; the prosecutor’s testimony disproves this charge; because if he had advanced the money to the defendant, the payment of it to the bank by the prosecutor would have been as the defendant’s agent, and the defendant’s debt to the bank would have been extinguished. Instead of treating the money paid to the bank as belonging to the defendant and as having been advanced to her, the prosecutor treated the money as his own, and took a transfer of the mortgage to himself. His own conduct shows that he was not advancing money to her, but was purchasing a secured debt due by the defendant. See Hirsch v. Meldrim, 124 Ga. 717.

Provisions of the value of $14 were proved to have been procured by the defendant on the faith of the contract. But’it also appeared that the defendant and her family did some work for the prosecutor between January 1 and the time she left, two months later. The value of this work was not shown, and it can. not be said as matter of law that the hirer sustained actual loss or damage. By the second section of the act, among other requisites to be established as affording a presumption of fraudulent intent is the “loss or damage to the hirer.” If the service rendered by the defendant was sufficient to compensate for the provisions (no other loss or damage having been shown), then the prosecutor suffered no injury. "While it is true that the breach of an entire contract may defeat a recovery for the value of the service actually rendered, when the action is predicated upon the contract, this principle of law is not applicable to cases of this kind. By the terms of the act the loss or damage to the hirer must be actual, and this is not shown by proving a state of facts which would negative a recovery on the contract because of a breach thereof. It may be that the value of the service rendered was more than the equivalent of the provisions advanced under the contract. Be this as it may, the burden was on the State to prove that the service rendered was of less value than the advances made to the accused, and the State did not successfully carry this burden. A new trial must be had.

Judgment reversed.

All the Justices concur.