Garth v. Dickinson

• Decision Date: 12 April 1917
• Citation: 193 S.W. 644,175 Ky. 22
• Parties: GARTH v. DICKINSON ET AL.
• Court: Kentucky Court of Appeals

193 S.W. 644

175 Ky. 22

GARTH v. DICKINSON ET AL.

Court of Appeals of Kentucky.

April 12, 1917

Appeal from Circuit Court, Todd County.

Suit by W. J. Dickinson against Evie W. Garth and another. From a judgment against the named defendant, she moved for appeal. Motion for appeal granted, and judgment reversed, with directions to proceed in conformity with the opinion.

Petrie & Standard, of Elkton, for appellant.

Selden Y. Trimble and Trimble & Bell, all of Hopkinsville, for appellees.

CARROLL J.

The appellee Dickinson, as surviving partner of the firm of P. E Bacon & Co., brought this suit against the appellant, Mrs Garth, and her husband, Anderson Garth, to recover $352 alleged to be due by them for goods, wares, and merchandise. The petition averred that the Garths were husband and wife and that in purchasing the articles Anderson Garth was acting as the agent of his wife. Anderson Garth, in a separate answer, denied that he purchased any of the merchandise as the agent of his wife, and also pleaded limitation. His answer was really an admission that he had purchased the merchandise and was liable for it, except that the account was barred by limitation. Mrs. Garth, in a separate answer, denied that her husband bought any of the merchandise as her agent, and averred that it was sold and delivered to her husband on his own account, and further pleaded the statute of limitation. On a trial before a jury there was a directed verdict against Anderson Garth, and, the jury having returned a verdict against Mrs. Garth for the full amount of the account, judgment was entered against her, and from this judgment she appeals.

The account is made up principally of charges for bran and screenings, but there are some charges for meal and flour. The first article charged was purchased on July 12, 1909, and the last on February 24, 1911, and the suit was filed in December, 1914. The evidence shows that some of the merchandise was ordered personally by Mrs. Garth, and some of it was purchased by Anderson Garth in person, but the case was practiced for the plaintiff on the theory that all the articles were purchased by Anderson Garth as the agent of his wife, and it was upon this theory that the court instructed the jury and that the jury found a verdict against Mrs. Garth. No attempt was made to hold Mrs. Garth liable on the ground that she personally purchased any of the articles on the account. It might also be here noticed that the plaintiff and his partner were merchants, and that the account was barred by limitation, unless it was taken out of the statute by the promise of her husband as her authorized agent to pay it, and the court so instructed the jury.

From this brief statement it will be seen that the correctness of the judgment depends on the question whether Anderson Garth, acting as the authorized agent of his wife, bought the merchandise and promised to pay for it.

Mrs Garth as well as her husband in their testimony denied that any of the merchandise was bought by him as her agent, and the only evidence for the plaintiff upon the issue as to whether the merchandise was sold to Garth individually or as the authorized agent of his wife is the testimony of Dickinson, the surviving partner of the firm that sold the merchandise, and...