Smith v. Holbrook

• Citation: 99 Ga. 256,25 S.E. 627
• Parties: SMITH. v. HOLBROOK et al.
• Decision Date: 20 July 1896
• Court: Supreme Court of Georgia

25 S.E. 627

99 Ga. 256

SMITH.

v.HOLBROOK et al.

Supreme Court of Georgia.

July 20, 1896.

Agency— Ratification — Assumpsit — General Issue—Secondary Evidence.

1. Where a clerk who was left in general charge of a mercantile establishment during the absence of the proprietor ordered goods appropriate to the conduct of the business, which were received and placed in stock, and the proprietor, upon ascertaining these facts, did not, within a reasonable time, countermand the order and offer to return the goods, he was bound to pay for the same, although in the first instance the clerk may have transcended his authority in ordering the goods, it appearing that his want of authority was unknown to the seller.

2. Under the pleading act of 1893, a mere plea of "not indebted, " it being simply a plea of the general issue, does not, in law, amount to a denial of averments distinctly and plainly made in the plaintiff's petition, and all such averments not otherwise denied are to be taken as prima facie true.

3. Accordingly, where the action was upon an open account, with appropriate allegations, a plea of the nature above indicated raised no issue as to the correctness of the amount of the account sued upon.

4. The contents of letters cannot be proved by parol, notwithstanding the fact that they were addressed to, and remained in the possession of, a nonresident plaintiff, no notice to produce the same having been served upon the local attorney of such plaintiff. As their production could have been compelled in this manner, the letters were not "inaccessible."

5. There was no error in directing a verdict for the plaintiff.

(Syllabus by the Court.)

Error from superior court, Ware county; J. L. Sweat, Judge.

Action by Holbrook, Glazier & Co. against W. J. Smith. From a judgment for plaintiffs, defendant brings error. Affirmed.

The following is the official report:

The plaintiffs, of Hartford, Conn., sued W. J. Smith upon an account for shoes. The court directed a verdict In their favor, and overruled defendant's motion for a new trial. In addition to the plea of not Indebted, he set up that the bill of goods sued for was or-dered by a clerk in his store, without his knowledge or authority, and before a partnership was formed between him and one Kimbrough, and before said goods were shipped to defendant he countermanded said order, but the goods were shipped, and received at the store of said firm, whereupon they notified plaintiffs that they would handle the goods only...