Young v. Pollak

• Decision Date: 19 December 1888
• Citation: 85 Ala. 439,5 So. 279
• Parties: YOUNG v. POLLAK ET AL. SAME v. GOETTER ET AL.
• Court: Alabama Supreme Court

5 So. 279

85 Ala. 439

YOUNG v. POLLAK ET AL.

SAME v. GOETTER ET AL.

Supreme Court of Alabama

December 19, 1888

Appeal from city court, Montgomery county; THOMAS M. ARRINGTON Judge.

These two cases, involving the same principles, and depending substantially on the same facts, were argued and submitted together. In each case the plaintiffs were merchants in the city of Montgomery, suing on common counts for goods sold and delivered to Mrs. Effie Young, the defendant, who was a married woman. The action by Pollak & Co. was commenced on July 18, 1887, claiming $408.10 for goods sold in December 1886, and in February and March, 1887; and that of Goetter Weil & Co. was commenced on the 30th of July, 1887, claiming $602.10 for goods sold during the months of February and March, 1887. In each case the defendant pleaded the general issue, and a special plea averring her coverture; to which special plea the plaintiffs replied, alleging that her husband had abandoned her, and had removed from the state and that the defendant, after such abandonment and removal by her husband, carried on business on her own account, and in her own name, as if sole and unmarried. Issues were formed on each of these issues of fact, under the rulings of the court on the pleadings. On the trial, the admitted facts, as reduced to writing and signed by the attorneys of both parties, are thus stated in the bill of exceptions:

"The defendant was married in Heard county, Ga., in 1875, to W. L Young, and shortly after said marriage, viz., some time in 1875, they moved to Chambers county, Ala., and there resided together for about one year, when the said W. L. Young, having stolen a horse in Georgia, ran away, and was gone about one year, when he returned to the defendant; and shortly afterwards, having stolen another horse in Georgia, he was arrested, and was convicted in Troup county, Ga., of larceny in two cases, for stealing said horses, and was sentenced in each case to imprisonment in the penitentiary of Georgia for ten years. After serving more than two years in said penitentiary said W. L. Young escaped, and came in the spring of 1881 to Montgomery, Ala., where his said wife, the defendant, had moved in the mean time, and he there obtained employment under an assumed name, and was frequently seen going in and out of her residence for about one month, when two policemen of the city of Montgomery, (Payne and Keating,) having been directed to look out for him as an escaped convict, arrested him, and delivered him to an officer of the state of Georgia. On the 24th day of December, 1881, said W. L. Young was granted a free pardon by the governor of Georgia, and was released from the penitentiary of Georgia; and he then returned to Chambers county, Ala., where he resided until some time in the latter part of 1883, or the early part of 1884, when he came to Montgomery, and remained there for several weeks at the house of the defendant, when he returned to Chambers county, and resided there most of the time until March, 1886, when he was again in the city of Montgomery, at the house of the defendant, and remained there a short time; and he afterwards lived in Chambers, Shelby, and Lee counties, Ala., and Heard county, Ga., until July, 1887, when he was again at the house of the defendant, in the city of Montgomery. Said W. L. Young is now a resident of Somerville, Tenn. At intervals since his marriage to the defendant he has written to his son, who resided with defendant, and to the defendant also, and especially since his pardon from the penitentiary aforesaid. From about January 1, 1880, the defendant has carried on in the city of Montgomery a small store, her original stock being purchased with money furnished her by her father, and given to her by him, and has invested the profits in the support of herself and her son, and in increasing the stock and business. In December, 1886, and up to the 17th of March, 1887, defendant had in said store a stock of goods worth from three to four thousand dollars, and had frequently purchased from Pollak & Co., Goetter, Weil & Co., and others goods on credit and for cash to be sold, and which were sold, in her said store, and she paid said credit accounts. In February and March, 1887, she purchased goods from Goetter, Weil & Co. to the amount of $592.76 by open account, which remains unpaid, with the interest thereon, all of which goods were purchased on the 28th February, except about $25, which was purchased after the 9th of March, 1887. In the latter part of May, 1887, under a bill filed by defendant in the city court of Montgomery on the 11th March, 1887, she obtained a divorce from her said husband, on the ground that he had been imprisoned in the penitentiary of Georgia for more than two years, and she is now a feme sole. From the time of the arrest of said W. L. Young in 1876, he and the defendant never lived together as husband and wife, except as hereinabove stated, and never cohabited together since said arrest."

In the case of Pollak & Co., as the admitted facts in that case show, the entire account sued on was contracted prior to February 28, 1887, except an insignificant balance.

On these admitted facts, being all the evidence in the cases, the court gave several charges asked in writing by the plaintiffs, and refused several charges asked in writing by the defendant.

The second charge given at the instance of the plaintiffs was in these words: "If the jury believe that W. L. Young after he came to Alabama in 1875 or 1876, returned to Georgia to remain permanently, or for an indefinite length of time, such return, with the intent as stated, would be an abjuration of the state of Alabama; and if the jury should find under this charge that said W. L. Young did abjure said state of Alabama, then, unless they are satisfied that when he came back into Alabama he came with the intention to remain here permanently, or for an indefinite length of time, such abjuration would continue; and if at this time the defendant was living separate and apart from him, and carrying on business in...