Clay v. Barlow , 73 Ga. 787 ( 1884 )

Hall, Justice.

[Mrs. Rosa D. Clay brought trover against Mrs. Elizabeth Barlow for certain personalty. On the trial, the evidence for the plaintiff was, in brief, as follows : Plaintiff owned certain property in Thomasville, which her husband had sold for her, and bought the furniture in dispute with the proceeds. He had no interest in the property whatever. At the time of the purchase, it was agreed that Olay should purchase part of the furniture and Mrs. Barlow part. ' Winsor, the agent of Mrs. Barlow, did not desire the person from whom the purchase was made to know of her interest in the transaction. He furnished ,to Clay $850.00, and the latter effected the purchase. One-half of this was used for Mrs. Barlow,-and the other half for Mrs. Clay. Clay then returned to Thomasville, made the sale of his wife’s property, as above stated, and repaid the half due by his wife. He leased from Mrs. Barlow the hotel in which the furniture was located, and being indebted to the extent of $400.00, Winsor, Mrs. Barlow’s agent, refused to let plaintiff have the furniture. She gave notice that she would claim rent; it was worth $300.00 per annum, and it was of the value of $1,500.00. One Scott immediately succeeded Olay when the latter' gave up the property. He testified that, at the time Olay surrendered the property for the rent, he (witness) and Winsor were present, and that Mrs. Olay was present during a portion of the negotiations, but was not present when the surrender was made.

The evidence for the defendant was, in brief, as follows : Olay agreed to purchase the house furnishing goods in the hotel, and Mrs. Barlow was to purchase the “standing furniture.” The whole amounted to about $1,500.00; Olay’s part amounted to $850.00. After the trade was made, Winsor found that Olay did not have the money, and loaned it to him, taking his due-bill therefor. Olay subsequently made some payments, but as he did not direct any appropriation of them, Winsor applied them to the payment of the rent. Olay failed to pay, and Winsor, for Mrs. Barlow, took the furniture and released him, he giving a receipt for $800.00 “for the furniture scheduled,” etc. If Mrs. Olay had any interest in the money paid, neither defendant nor her agent knew anything of it. Her claim was not heard of until after the transaction was over.

The jury found for the defendant. Plaintiff moved for a new trial, on the following grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court refused to postpone the case under the circumstances set out in the head-note, 2 (a)l ■ (3.) Because the court refused to re-open the case on the arrival of plaintiff during the concluding argument, and allow her to testify that a large part of the furniture in suit was bought by her from merchants, and that her husband had nothing to do with it. [Plaintiff’s interrogatories were used at the trial, atid contained nothing on this subject.]

(4.) Because the entire charge was erroneous.

(5.) Because the following portion of the charge is illegal : “ If you should believe from the evidence that Mr. Olay paid to Mr. Winsor the money of Mrs. Olay, the plaintiff, without knowledge upon the part of Winsor, or upon the part of the defendant, Mrs. Barlow, that it was Mrs. Olay’s money, then I charge you that the plaintiff would not be entitled to recover. If Winsor knew at the time of the payment of the money that it was Mrs. Olay’s money, used in payment of her husband’s debts, then I charge you that, in a proper action, she would be entitled to recover the amount of that money, but not in this form of action.

"If you should believe from the evidence that Mr. Olay borrowed of Mr. Winsor, acting as the agent of Mrs. Barlow, the sum of eight hundred and fifty dollars, or other such sum, for the purchasing the property in dispute, and that he was repaid this sum of money with his own or his wife’s money, or that if he repaid a portion of it, or all of it with money, without giving Winsor notice that it was his wife’s money; if the evidence shows you that it was her ínoney; if it should further appear to you that Mr. Clay sold the property to Mrs. Barlow in a settlement between himself and Winsor, under the hypothetical facts just stated, then I charge you that the plaintiff would not be entitled to recover.”

(6.) Because the court admitted in evidence, over objection, the receipt purporting to have been given by W. H. Olay.

(7.) Because the court admitted in evidence, over objection, the receipt given to Mrs. Barlow by Scott, upon his taking possession of the property. — The objection was that it was irrelevant.

(8.) Because the court admitted in evidence, over objection, the book containing an inventory of the goods surrendered by Clay and receipted for .by Scott.

(9.) Because the court'refused to charge as follows: “ Every sale of a wife’s separate property, in payment of her husband’s debts, by her husband or herself, is void.

“ If you believe from the evidence that the money received by W. II. Clay from Winsor was intended simply as a loan, and was returned by money of Mrs. R. D. Olay, and defendant’s agent, Winsor, knew that it was Mrs.

Olay’s money, then the defendant cannot withhold the property in dispute from the plaintiff in this action.”

The motion was overruled, and plaintiff excepted.]