Weaver v. Ogletree

• Decision Date: 31 December 1869
• Citation: 39 Ga. 586
• Parties: ISHAM WEAVER, plaintiff in error. v. DAVID OGLETREE,et al., executors, defendants in error.
• Court: Georgia Supreme Court

39 Ga. 586

ISHAM WEAVER, plaintiff in error. v. DAVID OGLETREE, et al., executors, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Non est factum. Agency. Estoppel. Ratification. Before Judge Green. Newton Superior Court. September Term, 1869.

David Ogletree and others, as executors or Philemon Ogletree, sued John S. Weaver and Isham Weaver, upon a promissory note purporting to be signed by them, dated the 9th *December, 1861, and due the 7th of December, 1862, for $814 03, payable to the executors of said Philemon Ogletree. Isham Weaver plead non est factum. Plaintiff's counsel introduced a witness who professed to know Isham Weaver's handwriting, and who testified that he thought Isham Weaver signed said note. The note was read in evidence and plaintiff closed.

Isham Weaver testified that he never saw said note till he was sued on it, and did not sign it nor authorize any one else to sign his name thereto; that about the date of this note John Webb called on him and said he had a note on him and John S. Weaver for $1,200 00 or $1,500 00, and that he wished the note put into two notes, that he might turn over $500 00 of the amount to some religious society, and he told Webb to go and see John; the note was not shown to him, and he never heard more of it till plaintiff's attorney dunned him just before this suit, and he told said attorney to go to his son, John S. Weaver; he would have told the attorney that the note was not his deed, but he was ashamed; when Webb called on him, John S. had considerable property, and when the attorney dunned him, John S. had some property; when one of the plaintiffs called on him and proposed to take a small amount for the note, he told him that the note was not his, and that he would not pay it. It was then shown by several witnesses that Isham Weaver's name was not in his handwriting.

In rebuttal it was shown that from 1844, Isham Weaver and Philemon Ogletree had had transactions, and one of the executors testified that for ten years past Philemon Ogletree held a note on Isham Weaver, which in January, 1861, amounted to $1,225 00. Another of the plaintiffs testified, that to the best of his knowledge said note was repeatedly renewed in the lifetime of Philemon Ogletree, and that after his death the note and another were turned over to Webb to be renewed and divided for the purpose aforesaid. Webb returned this note as a renewed note after said $500 00 was taken out by said division; and whenthis witness called on Isham Weaver, recently, he admitted to witness that he had *known for years that his name was on said note; said that John S. had fraudulently used his name, and that he would not pay the note, adding that if this was the only one he might pay it, but as there were others he would let the Court decide the matter. John Webb testified that when he called on Isham Weaver for the purpose of having the note renewed and divided into two, he said "go and see John;" he saw John, and in a day or two John brought him this note and the other for the religious society, signed as was the old note. John S. was then good, and Isham made no impression on Webb that his name was not his genuine signature. It was shown that before Isham Weaver ever denied the genuineness of the signature, John S. had left the State.

The Court charged the jury that a party may bind himself to an unauthorized act of another, either by express or implied ratification. Express ratification is when a party adopts and confirms an unauthorized act of another, and assumes the liability thus created by a positive promise, and this relates back to the original transaction. Implied ratification arises when the party sought to be charged with an unauthorized act, is informed of it and does not repudiate it, but acquiesces in and does not dissent from it for any length of time.

The jury found for the plaintiffs for the principal and interest on the note and costs.

A new trial was moved for, upon the grounds that the verdict was unsupported by the evidence, and because said charge was hypothetical, and therefore...