Brooks v. Barkley

• Citation: 18 So. 419,72 Miss. 320
• Court: United States State Supreme Court of Mississippi
• Decision Date: 24 December 1894
• Parties: S. A. BROOKS v. SALLIE A. BARKLEY

18 So. 419

72 Miss. 320

S. A. BROOKS v. SALLIE A. BARKLEY

Supreme Court of Mississippi

December 24, 1894

October 1894

FROM the circuit court of Noxubee county, HON. NEWNAN CAYCE Judge.

Action by appellant against appellee on an open account. The declaration alleges that the defendant, Sallie A. Barkley, in the year 1888, being the owner of a plantation in Lowndes county, Mississippi, permitted her husband, A. H. Barkley, to carry on planting operations on said plantation as her agent that during said year, in conducting said business, he bought plantation supplies from one Nance, and, in January, 1889, as her agent, borrowed money from plaintiff to pay Nance for such supplies, executing to plaintiff his individual note for the money so borrowed; that the money was used to pay Nance and that the debt was one for which she, as principal, was alone liable; that in accepting the note of said A. H. Barkley it was not intended to release the said S. A. Barkley from liability. The declaration further avers that during the year 1890 the said Sallie A. Barkley permitted her husband, as her agent, to conduct the planting business on said plantation, and that in so doing he purchased of one Scales certain plantation supplies for the benefit of the wife; that afterwards she obtained from plaintiff a loan of money with which the said indebtedness of Scales was paid. Plaintiff asked judgment for the amount of both bills, averring that defendant was liable therefor. A demurrer to the declaration was sustained, and, plaintiff declining to amend, the suit was dismissed, and plaintiff appeals.

Judgment reversed and cause remanded.

Orr & Orr, for appellant.

The declaration is good as a common law declaration against a principal for the acts of an agent. Where the agent has executed his individual promise, the creditor may sue him or the principal.

The declaration is also good under § 2293, code 1892. That the husband executed his note for the debt to Nance is immaterial. 43 Miss. 539; Clopton v. Matheny, 48 Ib., 285. Neither the mere acceptance of the note of the husband nor the recovery of a judgment against him will release the wife. Cook v. Ligon, 54 Miss. 368.

The case of Porter v. Staten, 64 Miss. 421, is not applicable to the facts stated in this declaration, but the case falls within the rule laid down in Ross v. Baldwin, 65 Miss. 570.

W. W Humphries, for appellee.

We think the demurrer was properly sustained, and rely upon § 2293, code 1892, and the decision in Porter v Staten, 64 Miss. 421. Even if the husband had given a note to the party alleged to have furnished supplies, in order to establish liability upon the part of the wife, it would have been necessary for the pleadings to show that the goods sold were such as fell within the scope of the husband's apparent power to purchase for the wife, and then the defendant could only be held for such items bought for the use and benefit of the business transacted with her property, and this would not include family supplies. The burden of proof, in such case, would be on plaintiff to show what items fell within the class for which defendant might become liable. The case of Ross v....