Rich v. Belcher, 21129.

• Decision Date: 16 May 1931
• Docket Number: No. 21129.,21129.
• Parties: RICH. v. BELCHER.
• Court: Georgia Court of Appeals

43 Ga.App. 377

158 S.E. 643

RICH.

v.BELCHER.

No. 21129.

Court of Appeals of Georgia,

Division No. 2.

May 16, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Decatur County; B. C. Gardner, Judge.

Action by A. B. Belcher against E. Rich. Judgment for plaintiff, defendant's certiorari was overruled, and defendant brings error.

Affirmed.

P. D. Rich, of Bainbridge, for plaintiff in error.

A. B. Conger, of Bainbridge, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J.

1. While the plaintiff, in a suit in a justice's court, must set forth, with some degree of certainty, his cause of action (Thomas & Blake v. Forsyth Chair Co., 119 Ga. 693, 46 S. E. 869), technical pleading is not required. Fine & Bro. v. Southern Exp. Co., 10 Ga. App. 161, 163, 73 S. E. 35; Cooney v. Foote, 15 Ga. App..455, 83 S. E. 696. Accordingly, a liberal construction has been given section 4715 of the Civil Code (1910), and, if the defendant in a justice's court is informed of the nature of the plaintiff's demand against him, the requirement of the Code section is met. Kinney v. Kinney, 20 Ga. App. 816, 93 S. E. 496. In the instant case the open account sued on in the justice's court was sufficiently itemized, in that it showedthe month and year of each purchase, and specified each article, and the price of each article going to make up the account.

2. "When a payment is made by a debtor to a creditor holding several demands against him, the debtor has the right to direct the claim to which it shall be appropriated. If he fails to do so, the creditor has the right to appropriate at his election. If neither exercises this privilege, the law will direct the application in such manner as is reasonable and equitable, both as to parties and third persons. As a general rule, the oldest lien and the oldest item in an account will be first paid, the presumption of law being that such would be the fair intention of the parties." Civil Code (1910), § 4316. Accordingly, the instant suit was not subject to demurrer on the ground that it was barred by the statute of limitations, because the itemized account showed that some of the purchases going to make up the account were made more than four years prior to the bringing of the suit, where it showed also a general credit representing a payment of more than the aggregate of such particular items. Hobbs v. Crawford & Maxwell, 4 Ga. App. 585 (1) 62 S. E. 157.

3. "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 to the 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 satisfactory 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...