Dobbins v. Blanchard

• Decision Date: 16 April 1894
• Citation: 21 S.E. 215,94 Ga. 500
• Parties: DOBBINS . v. BLANCHARD et al.
• Court: Georgia Supreme Court

21 S.E. 215

94 Ga. 500

DOBBINS .

v.BLANCHARD et al.

Supreme Court of Georgia.

April 16, 1894.

Liability op Wipe on Joint Note — Power of Husband as Wipe's Agent—Evidence.

1. A joint note and mortgage being executed by husband and wife for a consideration in money afterwards to be advanced by a creditor, the wife is bound only to the extent of so much of the consideration as she afterwards received; and in order to charge her with advances made to her husband on drafts drawn and signed by him individually, and not as agent for her, thecreditor most show, not only that he was authorized to act as her agent, but that he so acted in drawing the drafts and receiving their proceeds, or else that the proceeds were actually used for her benefit in the business to which his agency related.

2. A power of attorney, by which a wife appoints her husband to act for her, reciting that she has this day nominated and appointed, and does by these presents nominate and appoint and authorize, him to transact all and any business for her, make for her all necessary purchases for cash or on credit and execute and sign such notes, mortgages, deeds, and other papers as to him may seem proper and right for the advancement and proper management of her business of every sort, and declaring that she ratifies and confirms all his acts made for her "in pursuance of the aforesaid purposes from and after this date as fully and completely as if done by" herself, is no authority for or ratification of drafts previously drawn by the husband in his own name, and consequently this power will not of itself justify any charge against her for the amount of such drafts; nor will she be chargeable with the amount of similar drafts drawn by him after the execution of such power, without extrinsic evidence showing that he acted as her agent or attorney in drawing the drafts and receiving the proceeds, or, if he did not, that he actually applied the proceeds to her use, and not to his own use.

3. The action being upon a joint promissory note made by husband and wife, evidence that in point of fact the credit was given to the wife only is not competent. This would contradict the written contract on which the action is founded.

4. One of the plaintiffs, testifying as a witness, having stated in his evidence that he was not personally acquainted with the defendant when she shipped certain cotton, and that all communication between them had been by letter, and the letters themselves being in evidence, it was not competent for him to testify that she shipped the cotton for a specified purpose, inasmuch as this purpose could not be known to him except from the correspondence or by hearsay.

5. In an action against the wife upon a joint promissory note made by her and her husband, evidence is relevant which shows that a part of the consideration went directly from the creditor to the husband on a draft or check drawn by him individually, and was used by him or by a firm of which he was a member. As to money obtained by a husband on the joint credit of himself and wife, and applied to his own use, he is the real primary debtor, and the wife is in the position of a surety.

(Syllabus by the Court.)

Error from superior court, Clay county; J. H. Guerry, Judge.

Action by Blanchard, Humber & Co. against Mrs. A. G. Dobbins. Plaintiffs had judgment, and defendant brings error. Reversed.

Following is the official report:

Blanchard, Humber & Co. brought assumpsit against Mrs. Dobbins on a promissory note dated February 17, 1890, and foreclosed a mortgage given to secure the note, both of which were executed by the defendant and by her husband, Dr. W. O. Dobbins, who died December 16, 1890. The suit was commenced in July, 1891. Both cases were consolidated and tried together, and the jury found for the plaintiffs the balance they claimed to be due on the note and mortgage, $1,271.59 principal, besides interest and attorney's fees. The defendant's motion for a new trial was overruled, and she excepted. She set up by her pleas: (1) That the note sued on was not her debt, but that of her husband, and made by Dr. Dobbins and herself to cover whatever advances the plaintiffs might make or had made to her husband during 1890; that at the time of making the note she had not obtained for herself or on her own account any advances or money, nor was she in any way indebted to plaintiffs, nor was Dr. Dobbins at that time indebted to them, except for about $340.98 previously obtained by him, and of that indebtedness she knew nothing until long afterwards; that she had no voice in fixing the amount of the note; that plaintiffs and Dr. Dobbins were trading and dealing among themselves without any consultation with her, only just as her signature was needed to a note or mortgage to secure the indebtedness of her husband; that he was a physician, doing a large and successful practice, and that it was only a device, to secure the drafts to be drawn by him for his business ventures, that her signature to the note...