McRitchie v. Atlanta Trust Co.
| Decision Date | 18 March 1930 |
| Docket Number | 7376. |
| Citation | 152 S.E. 834,170 Ga. 296 |
| Parties | McRITCHIE v. ATLANTA TRUST CO. |
| Court | Georgia Supreme Court |
Rehearing Denied April 19, 1930.
Syllabus by the Court.
Creditor knowing money received was separate estate of debtor's wife, acquires no title against wife, regardless whether wife consents.
A creditor who receives in payment money belonging to his debtor's wife, knowing it to be her separate estate acquires no title to it as against her, whether she consent to the payment or not.
Check signed by husband with "agent" added to name held individual check of husband not putting payee on notice that wife's funds were drawn on (Civ. Code 1910, § 3570).
An instrument signed by one as agent, without more, is the individual undertaking of the maker, such words being generally words of description. So checks drawn by the husband and signed by him with the word "agent" added to his name, without more, were the individual checks of the husband, and did not put the payee upon notice that they were drawn on funds which did not belong to the husband but which belonged to the wife.
Principal is regarded as maker of instrument specifying agency and made substantially in principal's name; instrument specifying agency and indicating principal is regarded as made by principal though signed by agent only; instrument signed by agent for named principal is regarded as made by principal if agent has authority to bind principal; check on account in husband's name, as wife's agent, signed by husband as agent of wife is on its face check of wife; check signed by husband, as wife's agent, drawn on account in husband's name as wife's agent put payee on notice that check was drawn on wife's money.
Where in the body or on the face of the instrument the agency is distinctly specified and the principal indicated, and the contract is substantially in the name of such principal, the latter and not the agent will be regarded as the maker of the instrument. If on the face of the instrument the agency is distinctly specified and the principal indicated, and the contract is substantially in the name of such principal, the latter, and not the agent, will be regarded as the maker of the instrument, though the instrument be signed by the agent only. So if the instrument is signed by one as agent for a named principal, the latter, and not the agent, will be regarded as the maker of the instrument, provided, of course the agent has authority to bind the principal.
(a) Where an account stands in the name of a husband as agent for his wife, and a check is drawn thereon by the husband as the agent of his wife, such instrument is on its face the check of the wife.
(b) A check signed as above, and drawn upon an account standing in a bank in the same form, was sufficient to put the payee upon notice that the check was that of the wife, and the money on which it was drawn was her money, the marital relation between the parties being known to the payee of the check.
Deposit in name of husband as wife's agent is on its face account of wife; husband's check for individual purposes drawn on account standing in husband's name, as wife's agent in which husband deposited own funds, held not as matter of law paid from wife's funds.
Where a deposit in a bank stood in the name of the husband as agent of his wife, such an account on its face was that of the wife; but where it appears that the husband deposited in such account his own funds, which he claims were made in payment of his indebtedness to his wife, or were profits made upon stock transactions which he conducted in his name for his wife, and, where it is fairly inferable from the evidence taken as a whole, that the husband drew checks upon this account for his individual purposes, it cannot be held as a matter of law that a given check drawn on this deposit account by the husband, as agent for his wife, was drawn on and paid out of funds of the wife, but it was for the jury to say whether such check was paid from the funds of the husband or the wife.
Check by wife to husband's creditor is presumed paid from wife's account, not account in husband's name as wife's agent, obligating creditor for proceeds applied to husband's indebtedness.
Where there was a deposit account in a bank in the name of the husband as ""agent," and where the wife had a deposit account in the same bank in her own name, and drew her check on said bank, payable to the order of the creditor of the husband, which was collected by the creditor and applied to the payment of the indebtedness of the husband to such creditor, the fair presumption is, in the absence of proof to the contrary, that such check was paid from the deposit account standing in the name of the wife in this bank; and the creditor would be liable to the wife for her funds collected on such checks and applied to the indebtedness of the husband to the creditor.
Husband and wife may execute joint promissory notes; debt contracted in joint enterprise between husband and wife is debt of wife who may pledge separate property to secure payment; contract by wife to cover up suretyship for debt of husband held not binding on wife; husband, applying funds deposited in joint account of husband and wife obtained on joint note, to own indebtedness to lending bank, is primary debtor as to such funds, and wife is surety; if joint note of husband and wife was wife's individual obligation, and proceeds were used to pay husband's debt, wife could set off such payment in suit on joint note; payment on indebtedness of husband to bank, made from joint account containing individual funds of husband, could not be set off in suit against wife on joint note.
A husband and wife may engage in a joint enterprise, make joint contracts in reference thereto, and execute joint promissory notes therein. Where such is not merely the outward color but the real truth of the transaction, a debt contracted in the joint enterprise is the debt of the wife as well as the husband, and she may pledge her separate property as security for its payment.
(a) If the relation of debtor and creditor exists between the lender and the husband, and the form given to the writing executed, touching the loan and security for the same, is a mere device to cover up a real case of suretyship on the part of the wife, her contract will not be obligatory.
(b) Where the joint note of husband and wife for $13,000, secured by collaterals owned by the wife, was given to a bank, and the proceeds deposited in the bank to their joint account, and a portion of such funds so obtained was withdrawn by the husband and applied to his own indebtedness to the lending bank, the husband is, as to such funds, the real primary debtor, and the wife is in the position of a surety.
(c) If the transaction was a colorable one in that this note so given to the bank was in truth and fact the individual obligagation of the wife, and payments were made from the proceeds of this loan to the bank on the debt of the husband to the bank, then the wife would be entitled to set off the amount of such payments against the defendant bank in a suit by it on the joint note.
(d) Where, in addition to the proceeds of the above note, funds of the husband were deposited in this joint account, and payments made from the funds in this joint account on the indebtedness of the husband to the bank, not arising from the proceeds of this loan or from other funds not belonging to the wife, then she would not be entitled to set off such payments in an action by the bank on this note.
Applying the rulings made in the next preceding headnotes, we cannot say that a verdict was demanded in favor of the wife as to any payments made by the husband to the defendant, except that dealt with in the fifth headnote.
Charge that wife could not recover money used by husband to pay joint obligation of husband and wife held erroneous as inapplicable; charge that payments by husband from joint funds of husband and wife could not be recovered by wife however check was signed held erroneous; charge that wife could not recover funds given as gift to husband and used to pay own indebtedness held erroneous as inapplicable; charge that wife could not recover her funds if used by husband to protect collateral in which wife was interested held erroneous; charge that wife could not recover funds expended by husband if actually redeeming collateral in which wife had interest held misleading.
The court erred in giving in charge to the jury the instructions dealt with in the eighth, ninth, tenth, eleventh, and twelfth divisions of the opinion.
Charge that word "agent" after husband's signature was not notice that check was drawn on wife's funds held proper.
The court did not err in giving to the jury the instruction set out in the thirteenth division of the opinion.
We cannot hold as a matter of law that the verdict is contrary to the evidence for the reason assigned by the wife in the ninth ground of her motion for new trial, and dealt with in the fourteenth division of the opinion. This is so for the reason given in the fourth headnote and corresponding division of the opinion.
Denial of recovery to wife, for amount of check drawn by wife on own funds and applied by creditor on husband's indebtedness, held erroneous.
The verdict was contrary to the evidence in respect to the check of $1,990 drawn by the wife on her funds in the First National Bank of Newnan in favor of the defendant, the proceeds of which were applied to her husband's indebtedness to the defendant.
Exceptions to refusal to charge, not shown to have been preferred by movant, will not be considered.
Exceptions to the refusal of the court to g give in charge certain requested instructions will...
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