26 Ga. App. 772 | Ga. Ct. App. | 1921
Dissenting Opinion
dissenting. Under the. facts of this case and the principles of law laid down in Hull v. Sullivan, 63 Ga. 127, McDonald v. Bluthenthal, 117 Ga. 120 (43 S. E. 422), Simmons v. International Harvester Co., 22 Ga. App. 358 (5) (96 S. E. 9), and Schofield v. Jones, 85 Ga. 816, 819 (11 S. E. 1032), it is my opinion that the evidence demanded a verdict in favor of the plaintiff. See also Georgia Medicine Co. v.
Dissenting Opinion
dissenting. In my opinion, the evidence in this case demanded a verdict in favor of the plaintiff. In Hull v. Sullivan, 63 Ga. 127, it was held that “Where a person having property for sale, snch as land and a steam sawmill, agreed upon the price with one wishing to bny, but who could not consummate the purchase on his own account, because some of'the security required belonged to his wife, and thereupon the husband induced his wife to become the purchaser through him, and the contract was thus consummated, the conveyance of the property being made directly to the wife, and she giving her notes and mortgage for the purchase money, the mortgage embracing not only the property then conveyed to her, but also other property constituting her separate estate, she is bound as purchaser and mortgagor, if the seller and mortgagee committed no fraud upon her nor knew of any committed by the husband.” This principle of law was restated in McDonald v. Bluthenthal, 117 Ga. 120 (43 S. E. 422), as follows: “The fact that the owner refuses to sell the husband because of his inability to give security does not prevent an immediate sale of the same property to the wife; and if title to the property is, with her knowledge, conveyed to her, and she executes a mortgage thereon and on other property belonging to her, to secure the purchase-money notes, she does not assume the debt of her husband, nor is she surety for him, but is liable as principal and purchaser.” See also Simmons v. International Harvester Co., 22 Ga. App. 358 (5) (96 S. E. 9). All of these cases are based upon the principle, laid down in Schofield v. Jones, 85 Ga. 816, 819 (11 S. E. 1032), that, where a creditor at the time the debt is created really and in good faith intends to extend the credit to the wife, and not to the husband, and the consideration for her promise passes legally and morally to her, the transaction will be treated as a valid one, provided the seller committed no fraud on her, and knew of none committed by the husband. See also Longley v. Bank of Parrott, 19 Ga. App. 701 (92 S. E. 232).
Thus, the mere fact that in the instant case there had been previous negotiations between the vendor of the corporate stock and the husband, whereby it had been originally proposed that the husband would become the purchaser thereof, would not prevent a subsequent valid and binding sale between the vendor and the wife, provided her contract of purchase was not induced by fraud
As to this the husband testified as follows: “ When she got down to the office no new proposition was made Mrs. Harrell. She saw she was buying the stock, probably so. She signed the paper. I knew she was buying the stock. I did tell her the truth. As to whether I told her she was buying the stock or concealed the fact, I didn’t conceal anything from her. I don’t think I told her she was buying the stock.” While it is true that the wife in her testimony states that she did not in fact understand the nature of the transaction at the time she signed the note for the purchase of her stock, and that she then and there thought and understood that she was merely becoming surety for her husband, there is, nevertheless, no denial by her of the unqualified statement of Knox, the vendor, that her husband fully explained to her the nature of the transaction. The rule is well settled that “ one able to read, who executed a written contract without reading it, cannot avoid liability thereon because he signed without knowing the contents of the contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.” Georgia Medicine Co. v. Hyman, supra; Tinsley v. Gullett Gin Co., supra. In the instant case not only' did the defendant sign a note for the purchase of the stock, but, in order to pledge the stock as collateral, she also had to, and actually did, transfer and assign the stock-certificate itself; all this in the absence of any testimony whatever going to show any word or act on the part of either the vendor or the husband'that could be calculated to mislead or deceive. As indicating knowledge of the transaction on her part, she afterwards as a stockholder attended two separate stockholders’ meetings of the corporation; and she held the stock for a period of at least thirteen months after
It therefore appears to the writer that, in the absence of any proved fraud on the part of either the vendor or the husband, her contract of purchase, and her act in assigning the certificate of stock, constituted a legal and bona fide transaction, especially in view of her subsequent conduct in treating herself as its owner; and that she should not be permitted at this late day to repudiate and rescind her contract of purchase, which not only appears to have been originally bona fide, but which, by her acts and conduct, she has ratified and confirmed. In this connection see: Civil Code (1910), § 4305; Hunt v. Hardwick, 68 Ga. 100 (3 a); Smith v. Estey Organ Co., 100 Ga. 628, 630, 631 (28 S. E. 392).
Lead Opinion
1. The rule relating to sequestration of witnesses does not apply when the witness is a party, although there may be several parties on one side and all are intended to be introduced as witnesses, as all have the right to remain in court during the entire trial. Georgia R. Co. v. Tice, 124 Ga. 464(3) (52 S. E. 916, 4 Ann. Cas. 200).
2. Where letters which would be admissible in evidence are lost or destroyed, their contents are provable by parol, after proof of loss or destruction. Civil Code (1910), § 5829; Marietta Savings Bank v. Janes, 60 Ga. 286(2).
3. Though, a wife may contract as a feme sole, she cannot bind her separate’ estate by any contract of suretyship or by any assumption of the debts of her husband, nor sell her separate property to pay her husband’s debts. Civil Code (1910), §§ 2993, 3007. A note made by the wife for a debt of her husband and indorsed by him, where the payee of the note knows this fact at the time of its execution, cannot be collected from her by the payee. A deed executed by the wife to the payee of such a note does not bind her separate estate. This is true although the note and the deed were made by the wife to secure a loan contemporaneously made to the husband. Gross v. Whitely, 128 Ga. 79 (57 S. E. 94) ; Klink v. Boland, 72 Ga. 485.
4. Whether a transaction between husband and wife and a third person, in which the wife executed her note, with her husband as indorser, payable to the third person, ostensibly in payment of stock in a corporation held by the third person, the certificate therefor being issued to the wife and indorsed by her and delivered to the holder of the note as .collateral security, was a bona fide transaction by the wife for her own benefit, or was only a colorable scheme, entered into knowingly, for the purpose of paying the husband’s debt or becoming his security, were questions for determination by the jury. The evidence in the instant case was amply sufficient to support the defense set up by the wife, that the entire transaction between the plaintiff and herself and her husband was purely colorable in so far as she was concerned, and constituted a scheme and device and an attempt on the part of the plaintiff to make her surety for her husband and to bind her separate estate to pay her husband’s debts. The charge of the court was a full, accurate, pertinent, and exhaustive statement of the law applicable to the issues made by the pleadings and evidence. The judgment refusing another trial to the plaintiff was correct.
Judgment affirmed.