46 Ga. App. 648 | Ga. Ct. App. | 1933
J. O. Charles, as transferee of E. T. Black in an instrument which was a retention-of-title contract as to three mules and a mortgage as to two mules, foreclosed said instrument in the
Under the authority Cited in the first headnote and numerous other decisions, and the qualifications made by the trial judge to his approval of the first six special grounds of the motion for a new trial, this court is precluded from considering these grounds of the motion.
The 7th special ground of the motion for a new trial alleges that the court erred in- charging the jury “that if it appears to your satisfaction that Charles owes any money on account of this plea of recoupment set up in the case, that he owes it to the estate of Mrs. Childs and not to J. J. Childs, I charge you that if you find that J. O. Charles owes money by reason of this claim made by defendant, that he owes it to the estate of Annie E. Childs and not to J. J. Childs, that you would not be authorized to find a verdict in favor of the defendant in this case.” The language employed in this excerpt from the charge, even in the light of other portions of the charge, was confusing and misleading. The issue was whether Charles owed Childs, and not whether Charles owed Mrs. Childs or her-estate. Mrs. Child’s ownership of. the property was injected into the evidence, but no witness on either side testified that Charles owed Mrs. Childs anything. Charles'testified that he boarded with Mrs. Childs, but that he paid her $5 every Saturday night and paid her all that was due, and that he never had any contract with J. J. Childs. Childs testified»: “I made a trade with Charles to board him at $20 per month. He has not paid me. I rented him about 45 acres of land. . . He boarded with me. He made the contract with me. I was supplying my family.” The fact that Mrs. Childs owned the place did not relieve Mr. Childs of
Begardless of who owns the property occupied by husband and wife as a home, he is in law the head of the family, responsible for the necessities of the family, and authorized to contract to board another in such home; and though the property may belong to his wife, lie may, under certain circumstances, make contracts in his individual right and capacity for others to work the property. This being true, and there being no evidence that the plaintiff Charles owed the wife of defendant Childs anything, the court erred in charging the jury in reference to what Charles owed Mrs. Childs, as set out in the second headnote. Because of such error the court erred in overruling the motion for a new trial.
Judgment reversed.