Mitchell v. Treanor

• Decision Date: 31 May 1852
• Docket Number: No. 47.,47.
• Citation: 11 Ga. 324
• Parties: John J. Mitchell, plaintiff in error. vs. John Treanor, defendant in error.
• Court: Georgia Supreme Court

11 Ga. 324

John J. Mitchell, plaintiff in error. vs. John Treanor, defendant in error.

No. 47.

Supreme Court of the State of Georgia

MAY TERM, 1852.

Assumpsit, &c. in Baldwin Superior Court. Tried before Judge Johnson, February Term, 1852.

This was a suit by John Treanor against John J. Mitchell, upon an account for merchandize. The following statement of facts was agreed upon by the parties in the Court below:

" The goods charged in the account of plaintiff, were purchased by Mrs. Catharine Mitchell, the wife of defendant, in the year 1849, commencing on the 3d February and ending on the 27th December, 1849—she, during' the whole time, living separate and apart from her husband; having been constrained by family disagreements, and the unkindness of her husband, to leave the house of her husband, and live apart from him, with her infant child, seven years of age. During the separation aforesaid, she purchased and received the articles in the account sued; and they were charged by the plaintiff on his original book of entries to her, and not to Dr. Mitchell. Dr. Mitchell was then, and now is, possessed of some thirteen negro slaves and other property. The articles purchased were suitable to his pecuniary circumstances. At the time of the separation, no provision was made for the wife and child. Subse-quent to the making of the account, to wit, in February, 1850, a partial divorce was granted to Mrs. Mitchell; and the Jury allowed for past maintainance in their verdict granting the divorce. Dr. Mitchell gave an order to a third person, addressed to plaintiff, during the year 1849, desiring him to furnish the bearer with six yards of homespun; and which order plaintiff refused to comply with, saying Dr. Mitchell had no account there."

Upon this agreed statement of facts, the Court charged the Jury: " That Mrs. Mitchell having been constrained by the unkind treatment of Dr. Mitchell, to leave his house and live separate from him, without any provision having been made for her support, carried with her a letter of credit for necessaries suitable to the conditon of the husband; that the subsequent provision for alimony did not affect the liability of the husband to the merchant, unless it be shown that the alimony had been paid, and applied to the payment of such account for necessaries. The Court does not consider the charge of the goods to Mrs. Mitchell, as affecting the right of the plaintiff to recover from the husband."

This charge is assigned as error.

W. S. Rockwell, for plaintiff in error.

I. L. Harris, for defendant.

By the Court.—Lumpkin, J. delivering the opinion.

This was an action of assumpsit, brought by John Treanor against John J. Mitchell, to recover the value of a bill of goods furnished by the plaintiff to the wife of the defendant. The facts, as agreed upon by the parties, are these: The merchandize charged in the account was purchased by Mrs. Mitchell in the year 1849, commencing on the 3d of February and ending on the 27th of December of that year; she, during the whole of that time, living separate from her husband; having been constrained, by family disagreements and unkindness, to leavehis house and live apart from him, with her infant child, seven years old. The articles were charged in the original book of entries to the wife, and not to the husband. It appeared also, that during the year 1849, Dr. Mitchell gave an order to some third person, addressed to Treanor, desiring him to supply the bearer with six yards of homespun, which the plaintiff refused to purchase; saying, that Mitchell, the defendant, had no account with him.

Dr. Mitchell was then, and is now, in possession of some thirteen slaves and other property; and the things bought were suitable...