Weaver v. Ogletree

39 Ga. 586 | Ga. | 1869

Brown, C. J.

The evidence submitted to the jury in this case showed that John S. Weaver had been using the name of his father, Isham Weaver, for years, on his own notes, and that this fact was known to Isham Weaver. But he took no steps to stop this use of his name, and gave no notice to any one interested that it was not authorized by him. When, in the language of Isham Weaver, John Webb did call on him and John S. Weaver for some twelve or fifteen hundred dollars, and wanted the note divided into two, in order that he, Webb, might turn over some five hundred dollars to some religious society, he told Webb to go to John S. Weaver. He does not pretend that he even intimated to Webb that the note was not genuine, or that he was not bound to pay it. Webb went to John S. Weaver as he was directed, who told him all was right, to make the calculation, and he would have it arranged as he wished, and in a day or two he returned to him the two notes signed with the names of himself and his father, for an amount equal to the note he had presented to Isham Weaver; and Isham Weaver admits in his testimony that the note now sued on is dated about the time of the call on him by Webb, when he directed him to see John S. Weaver. When this note was presented to Isham Weaver for payment by Mr. Simms, the attorney, he swears that he would have told Simms that the note was not his act, but it involved his son, and he was ashamed.

We think the jury were authorized by the evidence to find that John S. Weaver had authority to sign the name of his father to the note, or if not, that the father, by his conduct, ratified the act of the son done without authority, and made it his own act and deed, and that he will not now be heard to deny its validity, when, by his conduct, he has induced other’s to act upon the belief that all was right. Mr. Chitty, in his treatise on Bills of Exchange, page 27, lays down the rule as follows: “A person may become drawer, indorser or acceptor, not only by his own immediate act, but also by that of his agent or partner. When a party insists that his name has been forged he may resist the payment at law or file a bill in equity. If he intend to resist the payment he should immediately, after hearing his handwriting has been imitated, give public notice, cautioning persons from taking bills or notes with his name thereon without first applying to him.”

In Barber vs. Gingell, 3 Esp. N. P. C., page 60, it was held as follows: “ Action against the defendant as acceptor, who proved that the acceptance was forged by Taylor, the drawer, in answer to which it was proved that the defendant had been connected in business with Taylor, and that he had paid several bills drawn as the present, by Taylor, and to which Taylor (as it was supposed) had written the acceptance. And Lord Kenyon held, that this was an answer to the case of forgery set up by the defendant; for though he might not have accepted the bill, he had adopted the acceptance and thereby made himself liable to pay the bill.” See Chitty on bills, page 31 note. Section 2166 of the Code declares that: “ A ratification by the principal relates back to the Act ratified, and takes effect as if originally authorized. A ratification may be express or implied from the acts or silence of the principal.”

As Isham Weaver was silent when the note was presented to him by Webb, and said nothing to notify Webb that the note he held and presented on him and John S. Weaver, was not genuine as to him, but referred him to John, who promptly agreed to divide the note and give the two smaller notes as desired, and soon after brought the notes, with the name of himself and his father upon them, we think this silence misled Webb and caused him to accept the new notes for the old one, and to give further time, when if the truth had been told, he, or those whom he represented, would most probably have taken steps to secure the amount while John S. Weaver had property. Under the state of facts made by this record and the authorities referred to, we are of the opinion that the Court below did not err in refusing to set aside this verdict, and grant a new trial.

Judgment affirmed.