Shaw v. Allen & Co.

34 Ga. App. 111 | Ga. Ct. App. | 1925

Lead Opinion

Bell, J.

(After stating the foregoing facts.)

In the absence of anything to the contrary, the presumption is that the husband and the wife were living together. The husband (who is the plaintiff in error) does not contend that the coat furnished to his wife should not be considered within the classifica- ’ tí on of necessaries suitable to her condition and habits of life. Cohabitation raises a presumption of the wife’s authority to purchase necessaries on the credit of her husband; and where the husband seeks to avoid liability on account of purchases so made, he has the burden of “showing that the goods were supplied under such circumstances that he is not bound to pay for them.” Mitchell v. Treanor, 11 Ga. 324 (1); Georgia Grocery Co. v. Brunson, 24 Ga. App. 484 (101 S. E. 130); Civil Code (1910), § 2996. The wife may by express contract bind herself personally for- necessaries for which the husband would otherwise be liable. Morrison v. Evans, 31 Ga. App. 256 (2) (120 S. E. 430). In the instant case she stipulated with the saleswoman that she did not want the coat, and would not take it, except upon the condition that credit therefor should be extended to her and not to her husband. While it appears that the saleswoman had no authority to close the bargain upon that condition, she was nevertheless the agent of the plaintiff and not the agent of the defendant’s wife, and notice to her of the only terms upon which the wife was willing to purchase was in reference to a matter connected with her agency and was notice to the plaintiff. “This is implied actual notice, and actual notice to the agent is imputed to the principal. . . In

a case where the agent has actual knowledge, the company has notice, upon the presumption that the agent will do his duty and inform his principal of those facts which affect the company’s -interest.” Wiley v. Rome Insurance Co., 12 Ga. App. 186, 188 (76 S. E. 1067). The saleswoman was the person with whom the wife dealt in making the purchase, and was the proper agent for the wife to notify of her intention not to purchase the coat except upon her own credit. Allen v. Hastings Industrial Co., 2 Ga. App. 291 (58 S. E. 504); Wilensky v. Martin, 4 Ga. App. 187 (1) (60 S. E. 1074). She was the proper person to receive the customer’s request and to convey it to the plaintiff’s agént- or officer having authority to determine the matter; although she had no authority herself to extend the credit. The plaintiff, being thus charged by the law with actual knowledge of the wife’s stipulation as to the only condition upon which she would buy, impliedly assented thereto when delivering the coat a few days afterwards. The testimony of the wife was uncontradicted and not for any reason subject to discredit. It matters not that the saleswoman may never have notified the plaintiff of the wife’s wishes, nor'that the plaintiff did not consciously extend the credit to the wife. Whether, urder the decisions, a wife living with her husband can not become personally bound for necessaries without an express promise on her part even where an actual intention by her to that effect is made manifest by the circumstances, it would seem clearly unnecessary to such result that the seller’s agreement to extend the credit to her should be express, provided there are circumstances from which, as in other cases, such agreement by him may be implied.

It conclusively appears that the purchase' was solely -upon the wife’s credit, and, this being true, the husband was not bound. The defendant indisputably and as a matter of law rebutted the presumption existing at the outset against him. The judgment of the municipal court was contrary to the evidence and without evidence to support it. The superior court erred in dismissing the certiorari.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.

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Rehearing

ON MOTION ROS REHEARING.

In the motion for rehearing it is insisted that in our decision we considered the evidence of Mrs. Shaw as set forth in the petition for certiorari, and that we overlooked the fact that the answer to the certiorari as made by the trial judge did not verify the petition with respect to her testimony. We examined the answer carefully and set out the evidence in the statement of facts in the light of it. It contains the following statement: “The testimony for the defendant, Charles A. Shaw, by himself and by his wife, is substantially correct, except that the wife did not state to the saleslady, ‘I did not want it on my husband’s account; that if it could not be charged to me personally, I would not buy it. • She told me that she.was sure it could be arranged. I told her then that if it could be arranged that way that I would want her- to send tbe coat out to me.’ Instead of the above quotation, the wife testified, in substance, as follows: ‘That she wanted to get the coat on her own account and responsibility, and when she asked the saleslady if it could be done, the. saleslady told her that she would have to see the credit manager, as she had no authority to open an account with anybody on credit.’ ” It will thus be noted that the answer verifies Mrs. Shaw’s testimony as set forth in the petition, with the exception of certain specified sentences. These were omitted from our direct quotation of her testimony, and, following the judge’s answer, we inserted in the place thereof the matter shown by the indirect quotation in the statement of her testimony. We considered only that part of her testimony which the answer verified, together with that which the answer substituted for the part it did not verify.

Motion for rehearing denied.

Jenkins, P. J., and Stephens, J., concur.