S. J. Winkles & Co v. Simpson Grocery Co

CourtSupreme Court of Georgia
Writing for the CourtHILL
Citation75 S.E. 640,138 Ga. 482
Decision Date14 August 1912
PartiesS. J. WINKLES & CO. v. SIMPSON GROCERY CO.

75 S.E. 640
(138 Ga. 482)

S. J. WINKLES & CO.
v.
SIMPSON GROCERY CO.

Supreme Court of Georgia.

Aug. 14, 1912.


(Syllabus by the Court.)

1. Homestead (§ 170*) — Partnership (§§ 139, 146*)—General Manager—Authority to Sign Notes—Waiver.

One who is clerk and general manager of a mercantile firm may, if authorized by the firm, sign notes to creditors of the firm in the firm name, binding the latter to pay the sum of money specified therein.

(a) But where such notes contain a waiver of homestead, such waiver is not binding upon the partnership, or the individual members composing the same, unless such clerk or general manager has express authority to make such waiver. The right of homestead is personal to the debtor, and no one can waive the right for him without his consent.

(b) Such a waiver of homestead, even if authorized by the firm, or by the individual members thereof, is not good as a matter of contract merely, or per se, as against a claim filed under a homestead to realty set apart to one of the members of the partnership by the United States court of bankruptcy.

(c) Partners in a mercantile firm are mutual agents for each other with reference to the conduct of the mercantile business in which they are engaged, and by virtue of this relation can give a firm note for the firm debts.

(d) Each partner can waive the homestead for himself and for his partner as to personal property belonging to the firm.

(e) But one partner cannot, by signing a note given to a creditor for a firm debt, waive the homestead as to real estate belonging to another partner, or authorize any one else to do so, without express authority from the other partner.

[Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 336, 337; Dec. Dig. § 170;* Partnership, Cent. Dig. 206-211, 213, 240, 242-255; Dec. Dig. §§ 139, 146.*]

2. Judgment (§§ 710, 713, 715*)—Individual Property — Homestead—Exemption — Estoppel—Judgment—Res Judicata.

One member of a partnership, against which, and against each member individually composing the firm, an execution has been issued in favor of a judgment creditor, and levied upon land belonging to one of the members of the firm individually, is not estopped from setting up a claim under a homestead in said land, as the head of a family, where it does not appear that on the trial of the case in which the judgment was rendered the question of waiver of homestead in the notes sued on was adjudicated.

(a) Nor would such claimant be estopped from setting up such claim because of a former verdict and judgment of the superior court finding the same property subject to the same fi. fa., in a case where the claimant's wife had filed a claim thereto, to which case he was not a party.

(b) Where a former adjudication of the superior court is relied upon to work an estoppel against one who claims real estate, as head of a family, as being exempt from levy and sale under the homestead law of this state, the former judgment must relate to the same question as the one on the subsequent trial, and must clearly decide it, and cannot be collaterally or incidentally considered for that purpose.

(c) A note purporting to be signed by a firm to a creditor, to cover an amount due by the former to the latter, stated the sum to be paid, and contained a waiver of homestead. Suit was brought on the note, and each member of the firm was served with a copy of the suit, including a copy of the note containing the homestead waiver. Neither partner filed any defense to the suit. No reference to the waiver of homestead was made in the pleadings, other than that the copy of the note attached to the petition contained the clause as to the homestead waiver. The judgment of the court made no reference to the waiver. It simply adjudged the amount due the plaintiff by the defendant firm. Held, that that judgment adjudicated only the sum due by the defendant to the plaintiff.

(d) The judgment did not adjudicate that the firm, or either member of it, had waived individually homestead to realty owned by the firm, as against the payment of the firm debt.

(e) Such judgment would not estop one member of the firm from setting up a claim, under a homestead set apart to him as head of a family, to land levied upon by virtue of a fi. fa. issued in pursuance of such judgment

(f) The court erred in refusing to grant a new trial.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1063. 1234-1241, 1244-1247; Dec. Dig. §§ 710, 713, 715.*]

Error from Superior Court, Polk County; Price Edwards, Judge.

Action by the Thomas-Hiles Company against S. J. Winkles & Co. Judgment having been rendered in favor of plaintiff, and assigned to the Simpson Grocery Company, a fi. fa. was levied on certain land, which Winkles claimed as a homestead. The property having been found subject to the fi. fa., and claimant's motion for a new trial overruled, he brings error. Reversed.

Bunn & Bunn, of Cedartown, for plaintiff in error.

T. W. Lipscomb, of Rome, and John K. Davis and W. W. Mundy, both of Cedartown, for defendant in error.

HILL, J. The claim was filed by S. J. Winkles as the head of a family, by virtue of an exemption set apart to him by the United States court of bankruptcy. The record discloses substantially the following: The Thompson-Hiles Company brought suit

[75 S.E. 641]

against S. J. Winkles & Co., a firm composed of S. J. Winkles and Mrs. M. E. Moore, on a promissory note containing a waiver of homestead. The note was ostensibly signed by S. J. Winkles & Co. This latter firm conducted a retail mercantile business in Cedartown. Mr. Tom Moore, the husband of Mrs. M. E. Moore, one of the members of the firm of S. J. Winkles & Co., was an employs of the latter firm, and as general manager of the business did the buying and selling, and there was evidence tending to show that he signed contracts for the firm. Winkles testified that he did not expressly authorize Moore to sign the notes sued on, or to waive the homestead. According to the evidence of Moore, on cross-examination, "the notes were signed by me as manager, and Mr. Winkles was not present when I signed them. The form of note was not discussed between me and Mr. Winkles at all." When suit was brought on the notes, a copy was served on S.T. Winkles. On the trial of the case, Winkles filed no defense to the suit and did not attend court. Judgment was rendered on the notes against the firm and each member thereof individually for the amount sued for. In neither the pleadings nor in the judgment of the court was any reference made to the fact that the notes contained a waiver of homestead, except that...

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13 practice notes
  • Lay v. Latimer, (No. 3424.)
    • United States
    • Supreme Court of Georgia
    • April 12, 1923
    ...judgments based upon foreclosure of mortgages. Bank of Forsyth v. Gam-mage, 109 Ga. 220, 34 S. E, 307.. In Winkles v. Simpson Grocery Co., 138 Ga. 482, 75 S. E. 640, a waiver of homestead was embraced in a firm note given by its manager. If anything therein ruled was contrary to what is hel......
  • Owens v. Williams, No. 34326
    • United States
    • United States Court of Appeals (Georgia)
    • November 19, 1952
    ...Ga.App. 43(3), 84 S.E. 494. To the same effect see Buie v. Buie, 175 Ga. 27(3), 165 S.E. 15; S. J. Winkles & Co. v. Simpson Grocery Co., 138 Ga. 482 (2b), 75 S.E. 640. The husband in the present suit was neither a party nor a privy in the former suit of his wife for damages on account of pe......
  • Fed. Life Ins. Co v. Hurst, No. 21043.
    • United States
    • United States Court of Appeals (Georgia)
    • August 27, 1931
    ...subsequent adjudication between the same parties is sought. The true test is identity of issues. Winkles & Co. v. Simpson Grocery Co., 138 Ga. 482 (2), 75 S. E. 640. "Where a judgment is pleaded as an estoppel, the burden is upon the party relying upon the estoppel to sustain the plea by sh......
  • Mcentyre v. Merritt, No. 23618.
    • United States
    • United States Court of Appeals (Georgia)
    • August 13, 1934
    ...(1), 114 S. E. 59; Id., 31 Ga. App. 709(1, 3, 4), 121 S. E. 691; Brady v. Pryor, 69 Ga. 691, 697; Winkles & Co. v. Simpson Grocery Co., 138 Ga. 482, 488, 75 S. E. 640; Civil Code (1910), §§ 4335, 4336. 2. "When a vendee under a warranty deed has fairly and reasonably paid a sum of money to ......
  • Request a trial to view additional results
13 cases
  • Lay v. Latimer, (No. 3424.)
    • United States
    • Supreme Court of Georgia
    • April 12, 1923
    ...judgments based upon foreclosure of mortgages. Bank of Forsyth v. Gam-mage, 109 Ga. 220, 34 S. E, 307.. In Winkles v. Simpson Grocery Co., 138 Ga. 482, 75 S. E. 640, a waiver of homestead was embraced in a firm note given by its manager. If anything therein ruled was contrary to what is hel......
  • Owens v. Williams, No. 34326
    • United States
    • United States Court of Appeals (Georgia)
    • November 19, 1952
    ...Ga.App. 43(3), 84 S.E. 494. To the same effect see Buie v. Buie, 175 Ga. 27(3), 165 S.E. 15; S. J. Winkles & Co. v. Simpson Grocery Co., 138 Ga. 482 (2b), 75 S.E. 640. The husband in the present suit was neither a party nor a privy in the former suit of his wife for damages on account of pe......
  • Fed. Life Ins. Co v. Hurst, No. 21043.
    • United States
    • United States Court of Appeals (Georgia)
    • August 27, 1931
    ...subsequent adjudication between the same parties is sought. The true test is identity of issues. Winkles & Co. v. Simpson Grocery Co., 138 Ga. 482 (2), 75 S. E. 640. "Where a judgment is pleaded as an estoppel, the burden is upon the party relying upon the estoppel to sustain the plea by sh......
  • Mcentyre v. Merritt, No. 23618.
    • United States
    • United States Court of Appeals (Georgia)
    • August 13, 1934
    ...(1), 114 S. E. 59; Id., 31 Ga. App. 709(1, 3, 4), 121 S. E. 691; Brady v. Pryor, 69 Ga. 691, 697; Winkles & Co. v. Simpson Grocery Co., 138 Ga. 482, 488, 75 S. E. 640; Civil Code (1910), §§ 4335, 4336. 2. "When a vendee under a warranty deed has fairly and reasonably paid a sum of money to ......
  • Request a trial to view additional results

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