Manley v. Chamberlin-johnson-du Bose Co, (No. 19647.)

• Decision Date: 24 January 1930
• Docket Number: (No. 19647.)
• Citation: 151 S.E. 676,41 Ga.App. 31
• Parties: MANLEY. v. CHAMBERLIN-JOHNSON-DU BOSE CO.
• Court: Georgia Court of Appeals

41 Ga.App. 31

151 S.E. 676

MANLEY.

v.CHAMBERLIN-JOHNSON-DU BOSE CO.

(No. 19647.)

Court of Appeals of Georgia, Division No. 2.

Jan. 24, 1930.

Rehearing Denied Feb. 12, 1930.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; John D. Humphries. Judge.

Action by the Chamberlin-Johnson-Du Bose Company against Mrs. W. D. Manley. Judgment for plaintiff, and defendant brings error. Reversed.

Cecil R. Hall, of Atlanta, for plaintiff in error.

Dillon, Calhoun & Dillon and S. G. Gil-breath, Jr., all of Atlanta, for defendant in error.

JENKINS, P. J. [1-4] "The husband is bound to support and maintain his wife, and his consent shall be presumed to her agency in all purchases of necessaries suitable to her condition and habits of life, made for the use of herself and the family. This presumption may be rebutted by proof." Civil Code 1910, § 2996. Thus the consent of the husband tothe wife's agency for him in the purchase of necessaries suitable to the condition and station of the family is to be presumed, and this presumption can only be rebutted by clear and unequivocal evidence that the articles furnished are not necessaries, or that the seller had actual or constructive notice of an allowance to the wife by the husband, either permanent or temporary, sufficient to enable her to procure necessaries without obtaining them upon her husband's credit. Adler v. Morrison, 15 Ga. App. 139, 82 S. E. 783. In the instant case no issue is involved, and no insistence made that the goods furnished were not necessaries within the meaning of the code section quoted, nor is there any contention or insistence that the seller had either actual or constructive notice of an allowance to the wife by the husband, such as would relieve the husband from his ordinary liability. The contention of plaintiff is that the goods were contracted for by the wife on her own individual credit. This she had the right and power to do, for "a married woman, though having no separate estate, may, by express contract, signifying that she intends to bind herself, and not her husband, become liable for board thereafter furnished to herself and children on her credit." Rushing v. Clancy, 92 Ga. 769, 19 S. E. 711. Thus, while the wife has prima facie authority to bind the husband in the purchase of necessaries, still the husband is not bound when it affirmatively appears that the tradesman contracted with the wife individually, and extended the credit to her in her individual capacity, and that both parties to the contract so understood. Bell v. Rossignol, 143 Ga. 150, 84 S. E. 542, L. R. A. 1915D, 1184, Ann. Cas. 1917C, 576; Good-son v. Powell, 9 Ga. App. 497, 71 S. E. 765. It is the rule, however, that, where it does not thus plainly appear that she has so contracted, and that it was the intention of the parties that the goods were to be furnished on her own individual credit, it is to be presumed that she contracted for them in the right of her general agency for her husband, and that he, and not she, is liable. Robinson v. McCommons, etc., Co., 24 Ga. App. 106, 100 S. E. 43; Brazell v. Hearn, 33 Ga. App. 490, 491, 127 S. E. 479.

Accordingly, the test...