McLaughlin v. Blount

61 Ga. 168 | Ga. | 1878

Warner, Chief Justice.

The plaintiffs brought their action against the defendant on a promissory note for the sum of $2,411.62, besides interest. The defendant pleaded payment of the note. On the trial of the case the jury, under the charge of the court, found a verdict in favor of the plaintiffs. The defendant made a motion for a new trial on the grounds therein stated, which was overruled, and the defendant excepted.

1. The only ground of error insisted on here, is the following charge of the court, as to the authority of Blount, the agent, to receive anything but money in payment of the note. The court charged the jury amongst other things, “ If anybody has testified to the fact that he was authorized only to collect this note, then the law is, he was only authorized to collect it in money. But it may be that he was authorized to collect it in other things, and if he has shown to you by testimony that he was authorized to collect it by taking property for it, then if he did take property it was sufficient; but a mere general agency on the part of Mr. Blount would not be sufficient to authorize him to take anything else but money for it.” This charge of the court was error. Code, §2861.

2. But in our judgment, no other verdict should have been rendered under the facts of the case and the law applicable thereto than was rendered by the jury, notwithstanding the error complained of. The defendant’s plea to the plaintiffs’ action was payment of the note sued on. One of the items of property with which the defendant sought to prove the payment of the plaintiffs’ note, was a note on McCurdy for $930.00, the property of defendant’s wife. This McCurdy note did not, and could not, under the law, constitute a payment of any part of defendant’s debt to the plaintiffs, for the reason that it was the property of his wife, however willing she may have been that it should be appropriated in that way without an order of the superior court as provided by the 1785 section of the Code, which declares that “no contract of sale of a wife as to her separate estate with her husband, or her trustee, shall be valid, unless the same is allowed by order of the superior court of the county of her domicil.” See also §2337. When it was shown that the McCurdy note was the property of the defendant’s wife, his defense under his plea of payment broke down right there, and plaintiffs’ agent had the right to refuse to receive it as any part payment of the note sued on, for that reason. It follows therefore that the defendant’s plea of payment was not sustained by the evidence in any view that could have been taken of it, and therefore the verdict was right under the law. Assuming that the defendant could have paid the note in property, that property must have been his own, or such as he had a right to dispose of. He could not pay off the note with other peoples’ property to which he had no title, or right of disposition.

Let the judgment of the court below be affirmed.