33 Ga. App. 490 | Ga. Ct. App. | 1925
(After stating the foregoing facts.)
Under the ruling stated in the syllabus, and the rule that a-party’s testimony, where doubtful or contradictory, is to be taken most strongly against him, the plaintiff failed to show the agency of the husband, or any special contract with the defendant wife to become independently liable for the necessaries and goods charged to her account, or any subsequent express or implied ratification by her, during the life of the husband, of the acts of the husband and the plaintiff merchant, with any knowledge of the facts upon her part. Nor does such an implied ratification subsequent to the husband’s death appear from her act in signing the note sued upon, since it was not shown, by any sort of clear and unambiguous evidence, that she then had knowledge that her husband had assumed to contract for her, and that the plaintiff had charged the account in her name, and that that the plaintiff had charged the account in her name, and that she was executing the note for such a debt. If, on the other hand, the defendant executed the note in part to discharge the previous account contracted by her husband, with the understanding that the debt was his, the evidence fails to show a valuable consideration for the assumption of such debt,—either that her execution of the note had canceled, discharged, or balanced off the account of her husband, or had caused any forbearance by the credtior, or that she had received a new consideration, it being conceded that the husband left no estate. Except as to the $66.98 balance, contracted by the defendant herself' after her husband’s death, there was a want of consideration and liability, so far as the testimony discloses, and the verdict in excess of that amount on the $820.48 note was contrary to law, as without evidence to support it. See Smith v. Head, 75. Ga. 755 (2), 757; McCord v. Thompson, 131 Ga. 126, 128, 129 (61 S. E. 1121).
Exception is taken in ground 4 to the admission of the plaintiff’s testimony, over the objection that it was not the best evidence, that he had mailed to the defendant several times a statement of the account, showing that it was “for the full amount of the account,—$820.48.” There was no proof as to the proper stamping, address, and deposit in the mails of the communications referred to, so as to authorize a presumption of their receipt by the defendant, and render such testimony of evidentiary value on the question of implied ratification by the defendant. See Bankers Mutual Casualty Co. v. Peoples Bank, 127 Ga. 326 (2), 327 (56 S. E. 429); Burch v. Americus Grocery Co., 125 Ga. 153 (3), 158 (53 S. E. 1008); Rawleigh Medical Co. v. Burney, 22 Ga. App.
On the defense set up by the amended plea that the plaintiff, to obtain the defendant’s signature on the $820.48 note, misstated the amount of total previous indebtedness, by telling her that it included both the previous open account and four notes for $75 each, also included in this suit, the plaintiff denied having made such a statement. There was, however, testimony from the defendant and her daughter sufficient to raise an issue for the jury as to whether such a misrepresentation had been made, and as to whether the defendant had been in fact misled thereby by reason of her illness and long enfeebled condition and the consequent inability to know for herself the correct amount of indebtedness. The court charged as to other contentions of the parties and other issues; but failed to charge with reference to this contention and issue raised by the amended plea, as complained of in ground 9. Even in the absence of a written request, the failure to charge thereon was error.
To the question, “You stated Mrs. Brazell (defendant) sent for the goods herself, how do you know that?” the plaintiff answered, “She sent orders part of the time,” that those orders were “in writing,” and that he had some of the orders with him, but not all. The court admitted this evidence over the objection that the orders themselves were the best evidence as to their nature and contents. While the orders were not introduced, it later appeared from the testimony that they related solely to the portion of the account contracted after the death of the husband, as to which there was no dispute. Even though the 'testimony excepted to in the 5th ground was inadmissible, the admission was harmless to the defendant.
In ground 8 exception is taken to the admission of testimony, over the objection that there was higher and better evidence
Exception is taken, in ground 11, to the failure to charge (without a written request) upon a material issue in the case, that “if the evidence showed that a portion of the account for which the said note for $820.48 was given was for necessaries and supplies furnished to or obtained by the family of movant’s deceased husband while her said husband was in life, the presumption . . would be that movant’s husband was liable alone for the debt so contracted, and that the burden would then be upon the plaintiff to show that defendant, by special contract, made herself liable for the debt represented by said account.” There is no merit in the particular ground of exception taken. It was not required, without a written request, that the jury be instructed as to shifts in the burden of proof or of proceeding as developed under the evidence. Jackson v. Merritt Hardware Co., 26 Ga. App. 748 (107 S. E. 394). The charge of the court upon the ground of defense with reference to want of consideration for the portion of the note representing the account made by the husband fully covered the rule with reference to the primary liability of the husband for necessaries, in the absence of a contract by the wife. While it did not cover the rules as stated in the headnofes, there was no exception thereto. Moreover, the court charged that if the entire, note represented the defendant’s own indebtedness, she would be liable for the full amount, but that if any part was given in settlément of her husband’s previous debt, she would not be liable for such part. While, as above discussed, the evidence failed to show facts and circumstances under which the defendant might have been held liable, even though the jury might have found that part of the note was a settlement of her husband’s previous debt, the instruction in effect that under no circumstances would she be liable for such a part was more liberal' to the defendant than the law required.
The court charged as follows: “Now, there is some con
“A strong moral obligation,” under the statute, is merely a “good consideration,” and not a “valuable” one such as will support an executory obligation. Civil Code, § 4243. While a new promise when in writing, “either in the party’s own handwriting or subscribed by him or some one authorized • by him” (Civil Code, § 4383), “revives or extends the original liability, it does not create a new one.”. Civil Code, § 4386. Construing these statutes, the Supreme Court has held that a new promise to pay a debt barred by the statute of limitations requires no additional consideration in order to constitute an effective revival of the original debt. Pittman v. Elder, 76 Ga. 371; Comer v. Allen, 72 Ga. 1 (4), 14, 15. “The old debt by virtue of the new promise is revived and the remedy thereon restored.” Shumate v. Ryan, 127 Ga. 118, 119 (56 S. E. 103). See also Turner v. Elliott, 127 Ga. 338, 341 (56 S. E. 434); Small v. Jones, 138 Ga. 521, 523 (75 S. E. 605); Ross v. Jordan, 62 Ga. 299 (1); Weatherly v. Hardman, 68 Ga. 592; the latter cases construing the law prior to the act of 1905 (p. 101), embodied in section 4384 of the Civil Code (1910), which now makes enforceable a promise to pay a debt discharged by bankruptcy, where made in writing. But the Supreme Court likewise has held that an executory “promise to pay a debt barred by the statute of limitations,” made voluntarily and without consideration, while it may effect a revival of the original debt, is itself a nudum pactum and unenforceable. Monroe v. Martin,. 137 Ga. 262, 263 (73 S. E. 341); Davis v. Morgan, 117 Ga. 504, 507 (43 S. E. 732). It is, however, the general rule that the benefit of a statute of limitations is a personal one, which the defendant may exercise, or waive by failing to plead or claim at the proper time. Strickland v. Jones, 131 Ga. 409, 415 (62 S. E. 322); Warren v. Powell, 122 Ga. 4 (49 S. E. 730). It is also the rule that where the court states a contention,
The instant suit seeks to recover, not on the revived account, but on the note for $820.48, and the note itself showed no bar in whole or in part by the statute; nor was there any demurrer, plea, or motion setting up any bar by the statute, either of the note or of the original.indebtedness, nor was there any plea or claim that the note was in whole or in part thus unenforceable as a nudum pactum. While the evidence showed that the account, unless revived by the note, except as to $66.98, would have b'een barred by the statute, and consequently as to the rest of the note the instrument itself Avas nudum pactum and unenforceable in itself (Avhatever might have been the effect of the new promise in reviving the original debt), the record fails to disclose that during the trial the defendant actually raised any such contentions, but on the other hand shows that the only point (raised during the argument to the jury) referring to the statute was indirectly in discussing the defense that the defendant Avould not have signed the note except for her mental incapacity, or for the plaintiff’s misrepresentations as to the amount and nature of the indebtedness. Although the instructions set forth were incorrect both as to the time and effect of the statute of limitations, since there was no pleading or actual contention claiming either the bar of the statute or that the note itself Avas by reason thereof in whole or larger part a nudum pactum, the inaccuracy could not have been prejudicial to the defendant.
On the other issue raised under the defendant’s pleadings and eAddence, that the defendant’s mental condition at the time of her signature of the note had been weakened by sickness, so that she was unable to understand the nature and consequences of her act, the evidence as to her mental condition was insufficient to show her contractual incapacity. On the issue as to AAdiether the plaintiff had misstated the amount of the indebtedness, and whether the
Where the mental condition of a person is the subject of inquiry, “the general reputation of such a person as to sanity may illustrate that issue.” Goss v. State, 14 Ga. App. 402 (1) (81 S. E. 247). Ground 6, excepting to the admission of evidence of this nature, was without merit.
The court did not err in excluding testimony, complained of in ground 7, sought to be elicited by the defendant from a physician, that, knowing her long sickness and confinement to her bed, and that she was “being dragged about the house in a chair,” he would not “want her to attend to any business” for him.
Even had the evidence been sufficient to raise such an issue, the court fully and fairly instructed the jury as to the rules of law applicable to mental incapacity, and that one must have “enough of mind and reason for a clear and full understanding of the nature and consequences of his act in making a contract” in order to have “sufficient mental capacity to make a contract.” The isolated extract from the charge on this subject, complained of in ground 10, if not wholly accurate within itself, was substantially correct when taken in connection with both the immediatety preceding and following context, where the rule for determining the defendant’s capacity under the evidence was elaborated and explained.
Under the rulings in the syllabus, for the reasons stated in the opinion, in the first paragraph and subdivisions (ft), (5), and (c) thereunder, it was error to overrule the defendant’s motion for a new trial.
Judgment reversed.