Akers v. Kirk

• Decision Date: 24 April 1893
• Citation: 18 S.E. 366,91 Ga. 590
• Parties: AKERS v. KIRK et al.
• Court: Georgia Supreme Court

18 S.E. 366

91 Ga. 590

AKERS v. KIRK et al.

Supreme Court of Georgia

April 24, 1893

Syllabus by the Court.

1. It was competent for the plaintiff to testify why it was that in the first instance he charged the account sued upon to the defendant's husband.

2. An agency to borrow money for the purpose of clearing off liens from defendant's property does not comprehend an agency to confer with the holder or claimant of one of the liens and make to him declarations touching the agency, the payment of the debt, the agent's hopes or arrangements as to borrowing money, or the purpose for which it was wanted, no application for any loan being made to such holder or claimant.

3. A conversation between the parties shortly before the trial, in which the defendant made certain admissions, was not rendered inadmissible as evidence by being brought about by the plaintiff through a proposition of settlement, it not appearing that the defendant's admissions were made with any view to a compromise, nor that any terms of settlement were mentioned or discussed.

4. There being evidence tending to show that the defendant's father had authority from her to borrow money for the discharge of the debt sued for in this action, his declarations to persons to whom he applied for loans, as to the purpose for which the money was wanted, were admissible in evidence, the purpose so declared being within the scope and object of the authority, so far as the debt now in controversy is concerned.

5. There being no contest as to the ownership of the premises it was immaterial who furnished the money to pay for them.

6. Recovery may be had upon evidence that the party sought to be charged was the concealed principal of a person who acted in his own name without disclosing his agency, though this fact be not alleged in the pleadings. If the objection was a good one to the evidence, it should have been presented and insisted upon when the evidence was offered, so that the declaration could be amended and made specific as to the mode in which the contract between the plaintiff and the defendant was created.

7. Where the verdict undoubtedly represents the natural equity and sound justice of the case, and there is enough legal evidence to support it, the admission of some illegal evidence in behalf of the prevailing party will not render a new trial indispensable. Both the trial court and the reviewing court being satisfied, the verdict must stand.

Error from superior court, Fulton county; M. J. Clarke, Judge.

Action by Thomas Kirk & Co. against Ella Akers. There was a verdict for plaintiffs, and a new trial denied. Defendant brings error. Affirmed.

In an action against a married woman to enforce a mechanic's lien where there was evidence that defendant's father had authority from her to borrow money to discharge the debt sued for, his declarations to persons to whom he applied for loans, as to the purpose for which the money was wanted, were admissible in evidence, the purpose so declared being within the scope of the authority.

The following is the official report:

Kirk & Co. sued Mrs. Akers upon an account, and also to foreclose a lien as contractors and material men for work done on and material furnished for the repairing and building of a certain house belonging to Mrs. Akers. The petition alleged that the lien was filed within 30 days after the work was completed and the material furnished; and that the suit was brought within less than 12 months from the time the work was done and material furnished, and also within 12 months from the time the debt became due. The account attached to the declaration ran from July 23d to November 10th, but the year was not stated. The lien was recorded December 28, 1889. Defendant pleaded "not indebted;" that she made no contract with plaintiffs; that they did not file their lien within the time allowed by law and alleged in the declaration; and that they took personal security for their debt. Plaintiffs obtained a verdict, and defendant's motion for a new trial was overruled, to which she excepts. Her motion contained the general grounds that the verdict was contrary to law, evidence, etc.; also that the court refused to nonsuit plaintiffs on motion of defendant; that no case was made out against her, but against her husband, G. W Akers, for which she was not shown to be responsible, which refusal to nonsuit was error. Error in allowing plaintiff over defendant's objection, to testify: "We charged the account to G. W. Akers, because we supposed he owned the house, and the house was good for it." Defendant objected, because the lot was not responsible for the improvements, unless the owner procured the improvements, or subsequently ratified them. Because the court permitted plaintiff to testify: "I have had a conversation with her (Mrs. Akers') father since the work was done, in reference to Mrs. Akers paying the debt." Defendant objected on grounds of irrelevancy, and that her father could not bind her. Also because the court permitted plaintiff to testify: "Her father, as near as I can remember, came into my store a month or two after the lien was filed, and he stated to me that he hoped to settle this account in a very short time. He was making arrangements, I think, with Mrs Healy to borrow money; and he hoped it would be all satisfactory, and in a very short time he would pay the account." Defendant objected because the court permitted plaintiff to testify: "He [T. J. Shepherd, defendant's father] wanted it [the money he was trying to borrow] to pay us for the work done on the house." Defendant objected on the ground that the testimony was irrelevant, and, further, that the promise, if any, on Mrs. Akers' part to pay G. W. Akers' debt should be in writing. Because on cross-examination of plaintiff he testified: "This morning Mrs. Akers and her father were sitting together, and he went out, and I went in and took a seat by her, and said 'could not this in some way be settled,--this case be settled,--and then this other conversation occurred,' meaning her admission testified to previously by plaintiffs, to wit, 'Mrs. Akers said that her father was trying to borrow the money to pay the debt off."' When plaintiff so testified, defendant moved to exclude the conversation already testified to by plaintiff, and set out above, on the ground that whatever occurred or was admitted in said conversation could not be received against defendant on this trial as it (the conversation) was looking to a compromise. Because the court admitted the recorded lien. Defendant objected on the grounds that the lien offered was recorded about 60 days after the last item sued on, and the petition set up that the lien claimed was recorded within 30 days of the last item, and that the allegate and probata did not agree; that the substantial part of the material sued for, to wit, the bills of August 13th and July 23d, was furnished over 90 days prior to the record of the lien offered; and that no connection was shown between the items of August 13th and July 23d, and the remaining material or items. Because the court permitted a witness, J. A. Scott, to testify: "I think he [T. J. Shepherd] wanted to pay certain debts with it. He wanted to borrow it for his daughter." Defendant objected on the grounds that there was nothing binding on Mrs. Akers in this testimony and that it was irrelevant. Because the court permitted Scott to testify: "Mr. Shepherd stated that he wanted to remove the liens that were on the property; that was what he wanted with the money." Defendant objected on the grounds that no connection was shown with Mrs. Akers, and that it was irrelevant. Because the court refused to permit defendant to show who furnished the consideration for the lot sought to be subjected to the lien of plaintiffs. As plaintiffs set up that Mrs. Akers and Mr. Akers were concealing an agency, this evidence was proper. Because the court permitted plaintiffs, in rebuttal, to prove by a number of witnesses the length of time Mrs. Akers was around the improvements, and the extent to which she exercised supervision. The error alleged was that plaintiffs had gone into all this kind of evidence in making out their case, and it was not legally or properly in rebuttal. Because petitioner alleged a contract and debt with Mrs. Akers, but the evidence only tended to establish a concealed principal, which was not alleged. Because the allegations of the petition and the evidence introduced thereunder do not agree.

So far as material, the evidence for plaintiff was: The materials mentioned in the account went into the house, which belonged to Mrs. Akers. At the time plaintiffs were making the improvements they thought the house belonged to Akers. Akers came...