Ponder v. Barrett

• Citation: 46 Ga.App. 757,169 S.E. 257
• Decision Date: 26 April 1933
• Docket Number: No. 22711.,22711.
• Parties: PONDER. v. BARRETT.
• Court: United States Court of Appeals (Georgia)

46 Ga.App. 757

169 S.E. 257

PONDER.

v.BARRETT.

No. 22711.

Court of Appeals of Georgia, Division No. 2.

April 26, 1933.

Error from City Court of Albany; Clayton Jones, Judge.

Suit by G. H. Ponder against Mrs. A. W. Barrett. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

Statement of facts by SUTTON, Judge.

G. H. Ponder brought suit against Mrs. A. W. Barrett on December 23, 1930 for $2,500, with interest from October 2, 1926, alleging that A. W. Barrett, acting as the undisclosed agent of the defendant, borrowed such sum from the plaintiff for the purpose of using it in the scope of his agency, and did so use it by depositing it with a broker to the account of the defendant, where A. W. Barrett carried an account in the name of the defendant for the purpose of trading In commodities; that the transactions in operating the account were confirmed by the defendant; that the defendant filed suit against the broker for a settlement of the account and received a considerable sum in settlement of the same; that plaintiff did not know that A. W. Barrett was the agent of the defendant, or was acting in her behalf; that he did not discover that A. W. Barrett was the undisclosed agent of the defendant until she filed the suit against the broker; that at the time A. W. Barrett obtained the money from plaintiff he knowingly, willfully, and intentionally withheld from plaintiff the fact that he was acting as agent for the defendant, and that the money obtained from plaintiff was obtained with the intention of being used in conducting the business of the defendant, which conduct on the part of A. W. Barrett was a legal fraud on him; and that by reason of these acts the defendant is indebted to him in said sum for money had and received by her, which in law and good conscience she is bound to repay.

The defendant denied the allegations of plaintiff's petition, and set up four defenses: (1) That the petition showed affirmatively upon its face that the cause of action was barred by the statute of limitations, which statute is specially pleaded in bar of the present action. (2) That the transaction between the parties was one between the plaintiff and A. W. Barrett, defendant's husband, and that the plaintiff extended credit and loaned the money to her husband on his credit alone and took a promissory note from her husband, under seal and payable to plaintiff, for the money, which note was signed by her husband individually. Plaintiff cannot disregard this sealed instrument and seek to hold defendant liable for the money loaned, on the ground that she was the principal of the borrower, which fact was unknown to the plaintiff at the time he loaned her husband the money. (3) That there were no acts of fraud involving moral turpitude alleged on the part of plaintiff or her husband. It is not set up that the defendant authorized her husband to borrow this money or authorized him to execute a note therefor to the plaintiff. She did not have any knowledge that such money had been borrowed or such note executed. She has not received the consideration directly or indirectly of such note. (4) Although her husband was not acting as her agent in borrowing such money and executing such note, directly or indirectly, she has previously settled and accounted with him as to any and all agency or agencies existing between them relative to any transactions with the broker, such a settlement being effected on October 22, 1930.

On the trial of the case, the evidence in substance made the following case: The plaintiff testified that he loaned $2,500 to A. W. Barrett; that he did not understand that Barrett was acting for anyone; that Barrett did not state that he was acting for any one but himself; that plaintiff did not have any information that Barrett was acting as agent for Mrs. Barrett; that he thought be was dealing with Barrett, and he loaned him the money in good faith; that he first found out that Barrett had placed the money so borrowed with the broker to the account of his wife when Mrs. Barrett sued the broker.; that he believed that Barrett was borrowing the money from him individually; that he did not make any loan or credit to Mrs. Barrett; that plaintiff had loaned money to Barrett at different times, and he paid it back: that plaintiff knows of no fraud on the part, of Mrs. Barrett that kept him from sooner bringing the present suit; that he never had any transactions with her; that he made several efforts to get Barrett to pay the note, but never asked Mrs. Barrett; and that...