Finch v. Barclay
| Decision Date | 13 July 1891 |
| Citation | 13 S.E. 566,87 Ga. 393 |
| Parties | Finch v. Barclay. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the rule that all public officers are presumed to do their duty, the ordinaries, who are required by section 1592 of the Code to give notice by publication and otherwise when standard weights and measures are obtained by them, will be presumed to have given such notice. Nor would a failure to give such notice relieve the citizen from his obligation to have his weights and measures duly marked.
2. The Code, § 1589, requires all persons engaged in selling by weights and measures to have the same properly marked by the ordinary, and declares that in default thereof they shall not collect any account, note, or other writing, the consideration of which is any commodity sold by their weights and measures. Whether, under this provision, taken in connection with section 2745 of the Code, the note and mortgage are void only for so much of their consideration as arose from sales of goods weighed and measured by unmarked instruments, or for the whole amount thereof, some of the consideration being other dealings, was not decided by the court below, and is left an open question for determination in this case on the new trial.
3. A married woman is liable for goods bought on her sole credit for the use of her son. If her undertaking was not primary but as surety for him, she is not liable. Her separate note and mortgage would be prima facie, but not conclusive, evidence of her actual relation to the debt.
4. A witness may refresh his memory by a memorandum taken from his books if, after so refreshing it, he can and does testify to the facts from his own recollection.
Error from superior court, Twiggs county; D. M. Roberts, Judge.
Action by J. A. Barclay against Mary A. Finch. Judgment for plaintiff. Defendant brings error. Reversed.
1. The court erred in withholding from the jury so much of the defense as related to selling by weights and measures not duly marked. True, the Code,§ 1592, directs that "when such standards are obtained it is the duty of such ordinary to give sixty days' written notice thereof at the door of the court-house and in the public gazette where the sheriff of the county advertises his sales;" and there was no affirmative evidence that such notice had been given. But the law presumes that a public officer performs all his official duties, and the effect of this presumption is to dispense with proving the fact otherwise when it comes collaterally in question. Moreover, this provision of the Code is simply directory to the officer, and failure to comply with it would not relieve the citizen from his express statutory obligation to have his weights and measures duly marked before proceeding to make sales by them.
2. Section 1589 of the Code is in these words: "All persons engaged in selling by weights and measures shall apply to the ordinaries of their respective counties, and have their weights and measures so marked; and in default thereof shall not collect any account, note, or other writing, the consideration of which is any commodity sold by their weights and measures." It was affirmatively proved in this case that the creditor sold by his weights and measures, and that they were not marked as required. That this was a good defense to so much of the action as sought a recovery for the price of the commodities so sold there can be no doubt. It admits of grave question, however, whether such an infirmity as to a part of the consideration of the note and mortgage will vitiate the whole, or whether there may be a recovery for so much of the consideration as arose out of other dealings between the parties. This question was not passed upon by the superior court, nor was it argued here in a way to enable us to settle it satisfactorily without further argument. Section 2745 of the Code declares that: "If the consideration be good in part and void in part, the promise will be sutained...
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