Brazell v. Hearn
| Decision Date | 14 February 1925 |
| Docket Number | 15716. |
| Citation | 127 S.E. 479,33 Ga.App. 490 |
| Parties | BRAZELL v. HEARN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
If a promissory note is given by one person to another in payment or extinguishment of the debt of a third person, there is a valuable consideration which will support an action thereon by the payee, provided the third person was actually indebted. "On the other hand, the mere debt of another without discharge, forbearance, or other new consideration will not support the note of a stranger to the debt." 8 C.J. 219, 220; Davis v. Tift, 70 Ga. 53 (2); Johnson v. Rycroft, 4 Ga.App. 547 (2 [c]), 61 S.E 1052; Saul v. Southern Seating Co., 6 Ga.App. 843, 847, 65 S.E. 1065, and cases cited. A valuable interest in the estate or assets of a deceased husband will support a note given by the widow to a creditor of the deceased; but if no assets are received from the estate, the note is without consideration. 8 C.J. 222. Mere love and affection, or a moral obligation alone to pay the debt of a deceased person, who left no estate, will not support a promissory note for the amount of the debt. McElven v. Sloan, 56 Ga. 208; Loudermilk v. Loudermilk, 93 Ga. 444, 21 S.E. 77.
The provision of the Code which declares that a wife cannot bind her separate estate for the debts of her husband does not affect the power of a widow to contract with reference to such debts after his death. Walker v. Walker, 139 Ga. 547 (7 [a]), 77 S.E. 795; Mize v. Hawkins, 54 Ga. 501 (1); Booker v. Small, 147 Ga. 566 (2), 94 S.E. 999. But the rule that the death of the husband relieves the wife from the disabilities of coverture, so that she may then contract as a feme sole with regard to the debts of her deceased husband, does not render inapplicable the rules stated.
Ga. Grocery Co. v. Brunson, 24 Ga.App. 484, 101 S.E. 130; Civil Code 1910, §§ 2996, 2997; Rushing v. Clancy, 92 Ga. 769, 771, 19 S.E. 711; Robinson v. McCommons, 24 Ga.App. 106 (2), 100 S.E. 43; Goodson v. Powell, 9 Ga.App. 497, 71 S.E. 765; Morrison v. Evans, 31 Ga.App. 256, 120 S.E. 430.
Where a husband opens an account with a merchant for the purchase of necessaries and other goods, the debt is his own, even though such goods may have been consumed in whole or in part by the wife. Likewise, where the husband, assuming to act as the agent of the wife, has the account opened and the goods charged in the name of the wife, the wife will not be held liable therefor, even though the creditor may have charged the account and extended the credit solely in her name, unless it be shown that the husband was in fact authorized to act as such agent, or that the wife subsequently ratified his acts, either expressly or impliedly, by continuing to accept and enjoy the goods received by her with knowledge of his acts and of the merchant's extension of credit to her, or by giving a note or other obligation for the indebtedness with full knowledge of the facts and circumstances. See Foster v. Jones, 78 Ga. 150 (1), 1 S.E. 275; Blackstone v. Widincamp, 145 Ga. 689, 89 S.E. 745; Woodward v. Fuller, 145 Ga. 252 (5), 88 S.E. 974; Wheeler County Bank v. Hargroves, 148 Ga. 487, 97 S.E. 69; Eberhardt Machine Works v. Houser, 18 Ga.App. 35, 88 S.E. 751; Va. Carolina Chemical Co. v. Wisenbaker, 18 Ga.App. 528, 89 S.E. 1053; Moore v. Sims, 24 Ga.App. 296 (1), 100 S.E. 647.
For the reasons stated in the opinion, in which the general grounds and the special assignments of error with reference to the charge of the court and the admission of evidence are dealt with, the court erred in refusing a new trial to the defendant.
Additional Syllabus by Editorial Staff.
Where party's testimony is doubtful or contradictory, it is to be taken most strongly against him.
Evidence held not to show husband's agency for wife in purchasing necessaries, and having account charged to her.
Evidence held not to show that wife agreed to become independently liable to merchant for necessaries and goods purchased by husband and charged to her account.
Evidence held not to show wife's ratification during husband's life of his acts in purchasing necessaries and charging same to her account.
Signing of note by widow to merchant after death of husband held not to have been implied ratification of husband's acts in purchasing necessaries and charging same to wife's account, in view of evidence not clearly showing her knowledge that husband had assumed to contract for her.
In action against widow on note given in settlement of book account to merchant, charge that jury could consider all facts and surroundings to determine whom debt was charged to on merchant's books, but that merely charging debt would not make that person liable, unless it was debt of person to whom it was charged, but that they could consider fact as to whom it was charged in determining whose debt it was originally, held confusing as mere charging of account in absence of some evidence of wife's authorization of husband's acts would be irrelevant.
Where there was no proof as to proper stamping, address, and deposit in mails so as to authorize presumption of receipt of statements alleged to have been mailed by merchant to wife, showing that necessaries purchased by husband were charged to her, merchant's testimony that he had mailed statements to her was inadmissible under best evidence rule.
Proof that statements, charging necessaries to wife, were sent by merchant long after indebtedness for necessaries was incurred by husband, could not of itself establish her ratification of husband's acts in making purchases.
Failure to charge on contentions raised by pleadings is erroneous, even in absence of written request therefor.
Admitting evidence, that wife ordered part of account for necessaries purchased by husband, was harmless in view of evidence that her orders related only to account which was purchased after husband's death.
Where it was shown without objection that wife had bought land under bond for title, objection to evidence of daughter that property was in her mother's name, was without merit.
Failure to charge without written request as to shifts in burden of proof, is not error.
In action by merchant on note, signed by wife, and which included debt for necessaries purchased by husband and alleged to have been charged to her, instruction, that under no circumstances would she be liable for necessaries, was more liberal to her than law required.
In action by merchant on note signed by widow for her alleged indebtedness for necessaries purchased by husband in lifetime and charged to her, inaccuracy in instruction that statute of limitation ran against open account in four years but did not begin to run so long as there were debits and credits, while incorrect, as applying mutual account statute to open account, was not prejudicial to defendant.
In view of Civ. Code 1910, §§ 4362, 4363, mere partial payments of debt and entries of credit by creditor on open account do not constitute mutual account, which will prevent statute from running and hence charge applying mutual account statute to open account is erroneous.
In view of Civ. Code, §§ 4243, 4383, 4384, 4386, new promise to pay debt barred by limitations requires no additional consideration to constitute effective revival of original debt; old debt under new promise being revived and remedy thereon restored.
Benefit of statute of limitation is a personal one which defendant may exercise or waive by failing to plead or claim in proper time.
Where court states contentions not raised by pleadings but properly insisted on and arising under evidence, unobjected to and undertakes to state law applicable thereto, if contention is vital, inaccurate, and prejudicial statement of law will be reversible error.
Mere argument of counsel to jury is not ordinarily to be designated as contention of party, and such designation by court may in certain cases require reversal.
Where mental condition is subject of inquiry, general reputation of such person as to sanity may illustrate that issue.
On issue as to capacity of defendant to attend to business, there was no error in excluding testimony of physician that knowing of defendant's sickness and confinement to bed, and that she was being dragged about the house in a chair, that he would not want her to attend to any business for him.
On issue of mental condition of widow to conduct her own business affairs, charge that one must have enough of mind and reason for clear and full understanding of nature and consequence of his act in making a contract in order to have sufficient mental capacity to make it was without error.
Error from City Court of Reidsville; C. L. Cowart, Judge.
Action by H. C. Hearn, administrator, against M. J. Brazell. Judgment for plaintiff, and defendant brings error. Reversed.
E. C Collins, of Macon, and A. S. Way, of Reidsville, for...
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