Norton v. Birmingham Fertilizer Co. , 15 Ala. App. 553 ( 1917 )

BROWN, J.

(1) This appeal is prosecuted from the judgment of the circuit court rendered in an action on a promissory-note against the appellant and another; and while the record does not show that summons was issued to the defendant who did not join in the appeal as required by the statute (Acts 1911, p. 589, amending section 2884, Code 1907), yet the cause was submitted without this irregularity being noticed and this operated as a waiver of the irregularity (Vaughan v. Higgins, 68 Ala. 546).

(2) The only defense interposed by appellant was that she was a married woman living with her husband, that the note was given for his debt, and that she signed as his surety. — Code 1907, § 4497.

The evidence shows that, at the time the indebtedness the consideration upon which the note was executed was contracted, the appellant owned a farm upon which she and her husband and codefendant resided; that the husband operated the farm and was the agent of the appellant in looking after the business connected with her farm; that the consideration of the debt was guano purchased and used on the appellant’s farm. And there is evidence tending to show that the guano was sold on the wife’s credit. This fact distinguishes this case from Wilson v. Andalusia Mfg. Co., 195 Ala. 477, 70 South. 140.

While the evidence offered by the appellant shows that the debt was that of the husband, and that she signed the note as his surety, it was a question for the jury as to whether the debt for which the note was given was appellant’s debt or the debt of the husband, and the affirmative charge requested by appellant was refused without error.

(3, 4) If the appellant’s husband acted as her agent in the purchase of the guano, whether it was within the scope of his authority or not, and she afterward ratified the transaction by giving the note therefor, she would be liable. While knowledge of all the facts is essential to ratification, charge 2 given at the instance of plaintiff does not deal with this phase of the case; and, while the charge may have misleading tendencies, this could have been corrected by a proper explanatory charge. The giving of the charge does not constitute reversible error. — Rogers, et al. v. Whittle, infra, 74 South. 96; Daniel v. Bradford, 132 Ala. 262, 31 South. 455.

Affirmed.