Foster v. Jones

• Decision Date: 01 February 1887
• Citation: 1 S.E. 275,78 Ga. 150
• Parties: FOSTER and another v. JONES.
• Court: Georgia Supreme Court

1 S.E. 275

78 Ga. 150

FOSTER and another v. JONES.

Supreme Court of Georgia

February 1, 1887

Error from Morgan county.

McHenry & McHenry and Foster & Butler, for plaintiffs in error.

Billups & Mustin, for defendant in error.

HALL J.

The question upon which this case must turn is whether the husband of the defendant was her general agent for the purchase of goods to supply her farm in the year 1883, and whether his dealings in that capacity during the previous years of 1881 and 1882, and which were recognized by the defendant, authorized the plaintiffs, who were cognizant thereof, to deal with him as such general agent during the subsequent year, it appearing that they lived together on the farm at that time, and there being no apparent change in its management, and whether the rulings of the court, and the directions given to the jury, were legal and proper, under the facts in proof. All the other points grow out of this main issue, and are subordinate or collateral to it.

It appears from the record that the plaintiffs, as a firm commenced business at the beginning of the year 1883, and consequently that the defendant had never, either by herself or agent, dealt with them jointly, on credit or otherwise during previous years; but it was shown that Foster, the senior member of the firm, had been a member of the firm of High & Foster, with whom, during those years, she had dealt through this agent, and whose accounts she had recognized and settled; that Ackerman, the junior member of the plaintiffs' firm, had served High during those years as clerk in a separate business he carried on in an apartment opening into the store of High & Foster; and that he was familiar with the business of the firm of which his employer was a member, and whose place he took in the new firm. It further appeared that early in January, 1883, the defendant's husband applied to the plaintiffs to sell him goods on credit, which they refused to do, because they knew him to be insolvent; but when, as agent of the defendant some time subsequently, he asked that goods be sold to her on credit, the request was acceded to, and they opened an account with her, and shipped most of the goods purchased by the agent to her address, to the railroad depot nearest her residence. She denied the receipt of any of these goods, or the authority of her husband to act as her agent in their purchase. The farm which she owned and cultivated was her dower, taken on the land of her former husband Mr. Zachary. Her present husband had leased the balance of the tract for the year 1883 from the representatives of Zachary, where he carried on a farm on his own account; and the goods purchased on her credit, it is claimed, were used on that farm. When the evidence was offered to establish these facts, the plaintiffs objected to it on various grounds, but it was received over their objections. Some of these objections need not be considered, but there are others that must be examined and passed on. They are that plaintiffs were not parties to the dealings between Zachary's representatives and defendant's husband; that they had no notice thereof, either actual or constructive, or of the altered relations between the defendant and her husband, or of his misappropriation of the goods purchased from them on her credit. A verdict was returned in favor of the defendant, and the plaintiffs moved for a new trial, which was denied, and to that judgment they excepted. The errors of law complained of will appear from the several grounds of this motion.

The fourth and fifth grounds of the motion relate to the admission of evidence as to the dealings between the defendant's husband and the administrator of Zachary, in relation to the lands, and in overruling plaintiffs' objections thereto, as above stated.

The sixth ground complains of the refusal of the court to charge, as requested by plaintiffs' counsel, in writing: "If the jury believe from the evidence that Jones was the general agent of his wife in carrying on her farming operations in 1881 and 1882, and such agency was known to Foster & Ackerman, and if they believe that Jones remained on the same farm in 1883, and no notice was given to Foster & Ackerman, or the public, in any manner, by Mrs. Jones or her husband, that the agency had ceased, then Mrs. Jones would be liable in this case for whatever the testimony shows was purchased by Jones, representing himself as such agent. No secret agreement between husband and wife, revoking a general agency, could relieve the principal from the act of the agent purporting to be done for his principal."

(7) Because the court erred in charging the jury, if they were satisfied from the evidence that the farm was rented and run by Jones; that he rented it, and bought the goods for the use of the farm; that they were furnished to be so used, --then Mrs. Jones was not liable.

(8) Because the court erred in charging the jury that Mrs. Jones could not constitute her husband her agent to purchase goods and have them charged to her, if they were to be used in the conduct of his business, and for his benefit. An agency created under her hand and seal would be invalid for that purpose. Objection that the charge had a direct tendency to mislead the jury from the real question and issue of the case; plaintiff's theory being that the goods were purchased for Mrs. Jones, and to be used on her farm; and, if not in her business, she had so acted in the past as to lead plaintiffs to believe it was her business; that they knew it was her business in preceding years; and if it had ceased to be hers, and become her husband's, she was bound to give notice of such change, and her failure to do so would operate as a fraud in these dealings with her husband under the idea that he was her agent, and she would, under these facts, be liable, whether Jones was really her agent or not. In this charge the court took from...