110 Ga. 373 | Ga. | 1900
It appears from the record that Mrs. Jones owned a farm in Twiggs county, Georgia, and that her husband, A. B. Jones, cultivated it. In 1893 the husband applied to-Davis & Co. to accept a draft so as to enable him to raise money to cultivate the farm. lie stated to them that his wife owned the farm, but agreed, if they would accept the draft, to sign it as his wife’s agent. They accepted it, and to secure their acceptance took a mortgage from him on certain horses and mules. It seems that a Mr. Bullard advanced the money on the draft to Jones. The draft becoming due in the fall, Jones was unable to pay it, and he requested Bullard to renew it. This Bullard refused to do. Jones owed Bullard an antecedent debt of $250. Bullard finally consented to renew the draft if Jones would include in the renewal one half of the amount of the old debt which was confessedly that of Jones and not that of his wife. Jones agreed to this, and another draft was made and the amount of the first draft and one half of the old debt included. This draft, dated Nov. 10, 1893, signed by Jones as his wife’s agent and for the sum of $600, was also accepted by Davis & Co. This last arrangement was made between Jones and Harrell, the son-in-law and agent of Bullard. Bullard died, and this draft was received by Mrs. Harrell, his daughter, as part of her distributive share of his estate. She gave it to her husband, who seems to have held it until February, 1899, when he brought suit upon it against Mrs. Jones as drawer, and Jones as the agent of his wife and Davis & Co. as acceptors. To this suit Jones filed a plea in which he admitted most of the allegations in the petition, but he denied that he was the agent of his wife in making and signing the draft, and set up that his liability was second to that of Davis & Co. Mrs. Jones pleaded non est factum, and also that a part of the consideration of the draft was a debt of her husband. The record does not disclose that Davis & Co. filed any plea, but from the evidence introduced and the verdict of the jury finding “for W. A. Davis & Co., the defendants, on their plea of release,” we presume that they pleaded a release. On the trial of the case Mrs. Jones testified that her husband was not her agent; that she had not authorized him to sign the draft or any other paper for her; that
It will be seen from reading section 2488 of the Civil Code that the provision is that the wife “can not bind her separate estate by any contract of suretyship, nor by the assumption of the debts of her husband; and any sale of her separate estate, made to a creditor of her husband in extinguishment of his debts, shall be absolutely void.” There is no penalty prescribed for the violation of the section, nor is there any direct prohibition in the section. It is clear that the legislature meant only that such contracts of the wife should be unenforceable. The wife may defeat a suit against her upon such a contract. If she is sued and does not 'make this defense but •allows judgment to go against her, it is a valid and binding judgment. And it has been held that where a wife gives a negotiable note for the debt of her husband and it is transferred before due to a bona fide purchaser for value, it is valid and binds her. It follows from what we have said that the assumption of the debt of the husband by the wife is not illegal in the sense in which the word is used in the code section relied upon by the plaintiffs in error. It follows further that if the wife gave her note partly for her own debt and partly for the debt of her husband, a portion of the note would be based upon a valuable and valid consideration, and the remainder would be void as without consideration, because of her incapacity to contract as to that portion. Where her individual part could be readily separated from the part which was for the debt of the husband, she would be liable in a suit upon the note for the part which was good. As we have seen, section 3662 of the Civil Code declares that if the consideration be good in part and void
In the case of Finch v. Barclay, 87 Ga. 393, the note sued on was given by Mrs. Finch to Barclay, and one of her pleas was that the consideration of the note was certain meat and corn sold by the plaintiff, a grocery merchant, to her son, by weights and measures, and that the plaintiff had not applied to the ordinary and had the weights and measures stamped as required by law. While the point made by her in this .plea was not decided in this court, the question not having been passed upon by the court below, Bleckley, C. J., in commenting on it, after having quoted the section of the code (now 3662), said: “Ought the consideration of a promissory note, in so far as it embraces the price of goods or commodities sold by unmarked weights and measures, to be treated as merely void, or should it be treated as illegal? If the former, the balance of the note would be collectible; if the latter, such balance would probably not be collectible by an action on the note itself, but only by an action upon the original promise or contract apart from the note.” This clearly shows the opinion of that eminent jurist as to the law in case a portion of the consideration of a note is void but not illegal. See also Lewis v. Howell, 98 Ga. 428.
For these reasons we hold that so much of the draft sued on as was based upon the debt of the husband was based upon a consideration, not illegal, but merely void for the want of capacity in the wife to make such a contract. That portion of the draft which was based upon her own individual debt (assuming that her husband had power as her agent to make the contract) was for a valid consideration and was binding upon her, the evidence showing the exact amount of her debt and of her husband’s. After deducting the amount based upon the debt of the husband, the balance was collectible.
Judgment reversed.