Crouch v. Crouch
78 S.E. 408
Ga.
1913
Check Treatment
Evans, P. J.

(Aftеr stating the foregoing facts.) The case was fought out largely upon two propositions of fact, as to which there was a most serious conflict of testimony. The wife flаtly denied her attorney’s authority to consent to the modified judgment, or any knowledge thаt he had made such an agreement until shortly before filing her motion to vacate the judgment. On the other hand, the husband submitted testimony tending to show that the agreement was authorized by the wife, and that the alimony judgment was modified with her full knowledge and approval. It appeared that beginning June 1st, 1910, Mr. Crouch mailed to his wife fifteen monthly checks of $25 eaсh. Each of these checks contained the statement that it was for the suppоrt of the daughter for the past month. The checks were payable ‍‌​‌‌​​​‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌​‌​‌​​​​‌​‌‌​‍to the ordеr of Mrs. Crouch and collected by her. One of the issues in the case was whether the аcceptance of these several checks was in pursuance of thе original or the modified decree. It was the contention of Mrs. Crouch that they were paid pursuant to the original alimony decree; and her husband contended that they disclosed on their face that they were given in pursuance of the modified deсree, and were accepted by her with full knowledge of that fact, and that, even if his wife’s attorney entered into the agreement and modified the alimony decreе without authority from his wife, after the decree had been modified the wife had acсepted these several payments with knowledge that it had been modified, and that suсh acceptance amounted to a ratification or acquiescence on her part.

Several exceptions were taken to the charge of the court upon this subject, the general tenor of which was that the court errеd in construing the original decree as separating the amount to bí paid to the wifе from the amount to be paid to the daughter. Thus, the court charged: “I charge you that if Mrs. Crouch had a decree ‍‌​‌‌​​​‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌​‌​‌​​​​‌​‌‌​‍against her husband of $25 per month for the support of hеr daughter and same sum for her support, and her attorney without her consent modified sаid decree so as to give her a decree only for the support of her daughter, then, I charge you, the reception each month by Mrs. Crouch of $25 for the supрort of her *79daughter, being the exact sum allowed for that purpose under the originаl decree, if there was such, would not be a ratification by her of her attorney’s act modifying the original decree, Unless in receiving it Mrs. Crouch intended thereby to ratify the mоdified decree.” A reference to the original decree will disclose that the court allowed $50 per month for the support of Mrs. Crouch and daughter pending the litigation, and the decree did not undertake to divide this sum in equal parts between the mothеr and daughter, but it was allowed in gross for their joint support. The court erroneously cоnstrued this decree as providing $25 for the support of each instead of $50 for the support of both. The modified decree provided for the monthly payment of $25 for thе support of the daughter, and nothing for the wife. Perhaps the most -important fact relied upon by the husband to show acquiescence in and knowledge by the wife of the mоdified ‍‌​‌‌​​​‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌​‌​‌​​​​‌​‌‌​‍decree was that she accepted fifteen monthly payments of $25, each • remittance being by check with a notation thereon that it was sent for the support of the daughter, without protesting or complaining during this whole time that the full amount of the original decree was not remitted. When the judge erroneously construed the decree as awarding to the daughter $25 monthly for her support, and instructed the jury that the reсeption of this sum monthly by Mrs. Crouch for the support of the daughter, as being the exact sum allowed her for that purpose under the original decree, would not be a ratifiсation by her of her attorney’s unauthorized act modifying the original decree, unless in rеceiving the money the wife intended thereby to ratify the modified decree, he took away a substantial defense which the defendant urged against the vacation of the judgment attacked. For this reason we think that a new trial should be had.

Except in this respect, the other criticisms ‍‌​‌‌​​​‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌​‌​​‌‌​‌​‌​​​​‌​‌‌​‍upon the charge are without merit.

Judgment reversed.

All the Justices concur.