Brazell v. Hearn, (No. 15716.)
| Decision Date | 14 February 1925 |
| Docket Number | (No. 15716.) |
| 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, 98 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 re- 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.)
[COPYRIGHT MATERIAL OMITTED]
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.
The amended answer of the defendant set up that the note sued upon, for $820.48 principal, was executed by her "for the payment of an open account for goods and merchandise, " for which she "was not liable * * * except for about $100 of said amount, which was purchased by her since the death of her deceased husband, which occurred on or about March 15, 1915, and that the balance of said account, having been contracted while her said husband was alive, and for goods and merchandise for the necessary support and maintenance of the family of her said husband, her said husband was alone liable for the payment of said account over and above said amount purchased by defendant since the death of her husband, * * * and defendant says, therefore, that there was no consideration for the said note, so far as relates to her, for the said note of $820.48, for an amount of said note over and above said sum of about $100, and defendant here pleads said w-ant of consideration" for the said difference, "and says she is not liable therefor." The jury found for the plaintiff in the full amount. The defendant excepts to the refusal of a new trial.
The testimony showed that the husband died on March 26, 1915, leaving no property; that only $66.98 of the amount included in the note, which was executed on April 13, 1922, represented goods purchased by the wife after the husband's death; and that the entire account had been running since 1905. The plaintiff payee of the note testified that the husband had no property; that "these goods were charged to and sold on the credit of" the wife; that "she sent for the goods"; that the reason he knew this was that "she sent orders part of the time, and the orders are in writing"; but it further appears that all such orders were subsequent to his death. The plaintiff testified that the defendant "knew in the lifetime of" the husband "that the account was charged to her, and there was no objection to it"; but he further swore, "I do not know of my own knowledge that she knew the goods were being charged to her, well, she ought to have known it, " since both her children and husband would come for them; "I have got evidence other than these orders that she sent for the goods"; "I don't know that she got them, * * * but it was carried to her house, and left there I guess, I don't know what went with it, her own children got it."
These "children" were not shown to be minors, the defendant testifying that she was 75 or 76 years old. The plaintiff further testified that, at the time the defendant signed the $820.48 note a statement showing the amount of the entire account as that sum was handed to her, and that she made no objection; but it does not appear that she then knew that the goods had been previously charged to her. The defendant denied that she knew that the goods were bought in her name by the husband, testifying, "I don't know whether he had the goods booked to me or not." The suit was brought; not only on the note in question for $820.48, but on four other notes for the principal sum of $75 each. The original answer as amended coupled with a plea of mental incapacity of the defendant at the time of execution the defense that the plaintiff, to obtain her signature on the $820.48 note, had misstated the amount of total previous indebtedness, by telling her that the note included both the previous open account and the other four notes.
E. C. Collins, of Macon, and A. S. Way, of Reidsville, for plaintiff in error.
P. M. Anderson, of Claxton, and J. Carl Hodges, of Vidalia, for defendant in error.
JENKINS, P. J. [1-9] 1-5. Under the rules stated in the syllabus, and the rule that a party's testimony, where doubtful or contradictory, is to be taken most strongly against him, the plaintiff failed to show the agency of the husband, or any special contract with the defendant wife to become independently liable for the necessaries and goods charged to the account of the wife, or any subsequent express or implied ratification by the wife, during the life of the husband, of the acts of the husband and the plaintiff merchant, with any knowledge of the facts upon her part.
Nor does such an implied ratification subsequent to the husband's death appear from her act in signing the note sued upon, since it was not shown, by any sort of clear and unambiguous evidence, that she then had knowledge that her husband had assumed to contract for her, and that the plaintiff creditor had charged the account in her name, and that she was executing the note for such a debt. If, on the other hand, the defendant executed the note in part to dis-charge the previous account contracted by her husband with the understanding that the debt was his, the evidence fails to show a valuable consideration for the assumption of such debt, either that her execution of the note had canceled, discharged, or balanced off the account of her husband, or had caused any forbearance by the creditor, or that she had received a new consideration, it being conceded that the husband left no estate. Except as to the $66.98 balance, contracted by the defendant herself after her husband's death, there was a want of consideration and liability, so far as the testimony discloses, and the verdict in excess of that amount on the $820.48 note was contrary to law as without evidence to support it. See Smith v. Head, 75 Ga. 755 (2), 757; McCord v. Thompson, 131 Ga. 126, 128, 129, 61 S. E. 1121.
(a) In ground 12 of the motion for a new trial exception is taken to an instruction that in determining whose debt the note was given to settle, "the jury may consider all the facts and circumstances surrounding the case; you may consider, in the first place, who was the debt charged to on the books, but I charge you, however, that merely charging a debt to a certain person on books of a merchant wouldn't make that person liable for them, unless it was in truth and in fact the debt of the person to whom it was charged, but I say you can consider the fact as to whom it was charged in determining whose debt it was originally." It is contended that this was erroneous because a charge on the books to the defendant would not be any evidence to bind her, in the absence of proof that she made the entry or had knowledge thereof or acquiesced therein.
The language quoted was error, likely to have confused the jury in determining whether the defendant had impliedly ratified the act of the husband in assuming to act as her agent, or the act of the creditor in extending credit and charging the account in her name, even if the evidence as to such a ratification was sufficient to have authorized a charge thereon. Under the rules stated in the 3d and 4th headnotes, the mere charging of the account would be irrelevant even as a circumstance in determining the issue as to whether the indebtedness on the account was that of the wife or that of the husband, in the absence of some evidence either that the wife originally authorized the acts of the husband and the creditor in charging the indebtedness to her, or that she subsequently, with knowledge of the facts, ratified such acts expressly or impliedly.
(b) Exception is taken in ground 4 to the admission of the plaintiff's testimony, over the objection that it was not the best evidence, that he had mailed to the defendant several times a statement of the account showing that it was "for the full amount of the account—$820.48." There was no proof as to the proper stamping, address, and deposit in the mails of the communications referred to, so as to authorize the presumption of their receipt by the defendant, and render such testimony of evidentiary value on the question of implied ratification by the defendant. See Bankers' Mutual Casualty Co. v....
To continue reading
Request your trial