Mather-groover Co v. Roberts

• Citation: 54 Ga.App. 398,187 S.E. 913
• Decision Date: 19 October 1936
• Docket Number: No. 25732.,25732.
• Parties: MATHER-GROOVER CO. v. ROBERTS et al.
• Court: Georgia Court of Appeals

54 Ga.App. 398

187 S.E. 913

MATHER-GROOVER CO.

v.ROBERTS et al.

No. 25732.

Court of Appeals of Georgia,

Division No. 2.

Oct 19, 1936.

Syllabus by Editorial Staff.

Error from Superior Court, Carroll County; L. B. Wyatt, Judge.

Action by the Mather-Groover Company against B. L. Roberts and another. To review an adverse judgment, the plaintiff brings error.

Affirmed.

Boykin & Boykin, of Carrollton, for plaintiff in error.

Samuel J. Boykin, of Carrollton, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

1. "The husband shall be 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." Code, § 53-510. So, where necessaries, such as household and kitchen furniture, are furnished directly to the wife, in the absence of any express agreement whereby she will be personally liable for the same, the presumption is that the wife purchased them in the right of her general agency of her husband, and that he, and not she, is liable to the creditor therefor. And this is true even though the creditor may have himself intended to credit the wife therewith and not the husband, unless it be that such intention was expressly declared or communicated to the wife. Georgia Grocery Co. v. Brunson, 24 Ga. App. 484, 101 S.E. 130; Brazell v. Hearn, 33 Ga.App. 490, 127 S.E. 479. The fact that the wife got the benefit of the goods purchased would not render her liable therefor. Hightower v. Walker, 97 Ga. 748, 25 S.E. 386. The contention in this case is that the goods were contracted for by the husband and the wife jointly, but it does not appear and is not shown that there was any agreement or contract between the parties that the wife was to be in any way liable for the merchandise purchased.

2. The rule is, that in order to hold the wife individually liable for necessaries purchased by her for the use of herself and family, it must be shown that it was the intention and agreement of the parties to the contract of sale that she was to be so bound. Otherwise, it will be presumed that the merchandise was purchased on the credit of the husband, and that he and not the wife was to be liable therefor. Rushing v. Clancy, 92 Ga. 769, 19 S.E. 711; Manley v. Chamberlin-Johnson-Du Bose Co., 41 Ga.App. 31, 151 S.E. 676; Arnold v. Brown, 42 Ga.App. 228, 155 S.E. 532; Rich v. Belcher, 43 Ga.App. 377, 158 S.E. 643; Greene v. Ballard, 45 Ga.App. 509, 165 S.E. 309.

3. Therefore, where, on the trial of an action on account by a furniture company against a husband and a wife, alleging that they had jointly contracted to pay for certain furniture, the wife having denied liability and the husband having admitted his sole liability and denied that his wife was liable, it appears that the wife was present with the husband when the furniture was purchased, there being no express agreement that she was to be jointly liable therefor, but that the salesman of the plaintiff, when he made the sale of the furniture, caused the husband alone to execute a contract, obligating himself to pay for the furniture on the instalment or partial-payment plan, and by which contract...