Shoup v. Elliott , 192 Ga. 858 ( 1941 )

1. There was no error in excluding from evidence that portion of the testimony of the defendant as to why she indorsed these notes and transferred the loan deed to Mrs. Elliott, her answer being "because he [her husband] had made a contract with Mrs. Elliott [plaintiff], and he could not have fulfilled that contract if I hadn't done it;" and further, that "I did so he could get the lot;" the objection to this evidence being it was a mere conclusion and opinion evidence. The motive of the party, not shown to have been disclosed to the other, was irrelevant. Huger v. Protestant Episcopal Church, 137 Ga. 205 (6) (73 S.E. 385).

2. To permit the plaintiff in the original suit while on the witness stand to testify that she was to sell this property "under whatever contract was made; that was the clear understanding; the words of it may or may not bear it out, but that was clearly understood at the time of the transaction," she having immediately before testified that "I was selling Mrs. Shoup the property," was not, under the issues made in the pleadings, subject to the objection that the quoted testimony was contrary to the written contract, and not the highest and best evidence.

3. For the same reason it was not error to exclude, as not responsive and as calling for a conclusion at variance with her written contract, the answer of the plaintiff as a witness to the question, "So if this deed was made to any one other than the contracting parties here, it was a matter between you and Mr. Sams, wasn't it, who was preparing the papers for you?" the answer being, "I don't know any way to answer your question, except that Mr. Sams made the deed according to the agreement."

4. A new trial will not be granted because of a refusal of requests to give in charge to the jury stated instructions, when it appears that these instructions were substantially covered by the charge as actually delivered.

5. A request for the judge to charge the jury that "any contract for the sale of land, to be binding on the contracting parties, must be in writing and signed by the parties to be bound thereby," was properly refused, since it was relevant to no issue in the case on trial.

6. The attack on the excerpt of the court's charge to the jury, pointed out in ground numbered 10 of the motion for new trial, is without merit; the portion of the charge here excepted to being adjusted to the issues made by the pleadings and the testimony, and containing correct principles of law applicable thereto, which principles are referred to and discussed in the opinion.

7. The evidence was sufficient to sustain the verdict, and the refusal to grant a new trial will be affirmed.

Nos. 13845, 13846. SEPTEMBER 10, 1941. REHEARING DENIED OCTOBER 14, 1941. Mrs. Mary C. Elliott sued Orburn T. Moore, Mrs. Pearl Peck Shoup, and Richard C. Shoup on a series of promissory notes, alleging that the notes were executed on March 1, 1930, by Moore to Mrs. Shoup, and were sold, transferred, and indorsed to petitioner by Mrs. Shoup, and indorsed also by her husband, Richard C. Shoup. The only defendant who answered the petition, so far as the record shows, was Mrs. Shoup, a material portion of whose answer was in substance as follows: That she is, and was at the time of the indorsement and delivery of the notes sued on, the wife of Richard C. Shoup, which fact was known to the plaintiff, and by said indorsement and delivery of said notes and transfer of the deed securing them to the plaintiff this defendant, with the knowledge of the plaintiff, stood as surety for her husband, who was at that time indebted to plaintiff on his indorsement of the unpaid balance of a series of promissory notes executed by Orburn T. Moore to Mrs. Pearl Peck Shoup, dated May 29th, 1928, indorsed by defendant and by her husband, which notes had been transferred to and were held by plaintiff, and in satisfaction whereof the notes sued on were given; that said conveyance was of her separate estate, and was made without any order of court, and was therefore void; that by agreement of the parties Richard C. Shoup was to buy and the plaintiff was to sell certain property on Sheridan Drive in Fulton County for a stated sum, giving in payment therefore notes signed by Moore, payable to Mrs. Shoup, being purchase-money notes for another piece of property in DeKalb County, sold by Mrs. Shoup to Moore, the notes to be indorsed by her and her husband; that under said agreement Richard C. Shoup became obligated to the plaintiff for its performance; that her husband wanted to purchase the lot on Sheridan Drive on which to build an apartment-house, and overpersuaded her to let her said notes and security deed be used as surety for the fulfillment of her husband's obligation to purchase the designated lot from plaintiff; that accordingly the notes were indorsed and the security deed executed by her; that she agreed with her husband only that her notes might be used for the purchase of the lot by her husband, but she did not agree to become liable on any indorsement; that when the plaintiff executed the deed she conveyed the lot, not to her husband, but to herself, though the deed was delivered to her husband; that when she later learned that the deed was executed to herself, she executed a deed to it to her brother, and he in turn executed a deed thereto to her husband; that she did not negotiate with the plaintiff, but all transactions were had between her husband and the plaintiff, and her husband was not authorized to act as her agent in the matter; that about March, 1930, defendant Moore, desiring to renew a loan on the DeKalb County property, procured from plaintiff a quitclaim deed thereto, executed new first-loan papers, and executed a new security deed to Mrs. Shoup, together with a series of notes, the ones now sued on; that this security deed was transferred by defendant to plaintiff; that the defendant protested against such transaction, but the plaintiff insisted that she would not accept the notes without the indorsement of Mrs. Shoup, and her husband importuned her to complete the transaction; that such handling of the transaction was a scheme on the part of the plaintiff and her attorney to make it appear that the sale was to her instead of to her husband; that no consideration passed, and she received no benefit of any kind from the transaction. The defendant prayed that the indorsement of the notes by her and the transfer of the security deed be canceled and declared void and of no effect.

On the trial of the issue thus made evidence was submitted in support of the contentions of the parties. In evidence was a writing which on its face purported to be a contract whereby for a stated price the plaintiff obligated herself to sell, and Mr. Shoup to buy from her, the lot in Fulton County above referred to. Other testimony tended to prove the defense outlined above. The jury found for the plaintiff. Mrs. Shoup moved for a new trial on general and special grounds. The motion was overruled, and she excepted, assigning error on that ruling and on the court's ruling on demurrers. It is the contention of counsel for the plaintiff in error that there was only one contract, confirmation whereof was expressed in the papers indorsed by and signed by Mrs. Shoup, and that she pledged her own property and credit to secure the obligation of her husband. On the other hand it is contended that the initial written agreement between Mrs. Elliott and Mr. Shoup was abandoned, and that a separate and distinct contract was entered into between the parties, and that this latter amounted to an original undertaking on the part of Mrs. Shoup which was binding upon her. Parties may by mutual consent abandon a contract so as to make it not thereafter binding.Evans v. Cherokee Iron Co., 73 Ga. 459 (3). This principle has been applied to an executory contract for the sale of land.Manley v. Underwood, 27 Ga. App. 822 (110 S.E. 49). A contract may be rescinded by agreement, although the evidence thereof may be by conduct and not by words. 12 Am. Jur. § 431. When a new contract in relation to the sale and purchase of this land was entered into by Mrs. Elliott and Mr. Shoup and another, this could ordinarily have no other effect than evidencing the fact that the first agreement between Mrs. Elliott and Mr. Shoup had been rescinded by mutual agreement, or abandoned. The judge submitted to the jury the question whether or not there had been an abandonment of the original agreement signed by Mrs. Elliott and Mr. Shoup, and there was evidence sufficient for them to find that it had been abandoned. If such was the case, then in no sense could it be said that at the time of the transaction now under investigation Mrs. Elliott was the creditor of Mr. Shoup. While a married woman may not contract a debt of suretyship that will bind her, she may as an original undertaker become liable on a debt incurred by her, although she derives no benefit therefrom. Freeman v. Coleman, 86 Ga. 590 (12 S.E. 1064); Tuggle v. Duke, 42 Ga. App. 634 (157 S.E. 224); Saxon v. National City Bank of Rome, 169 Ga. 784 (151 S.E. 501). The ruling in Gibson v. General MotorsAcceptance Corporation, 46 Ga. App. 201 (2) (167 S.E. 203), is sound, to wit, that "Where a married woman enters into an unambiguous written contract whereby she becomes the owner of personality, and agrees to pay a stipulated price therefor, she is bound by her obligation as purchaser, if the seller committed no fraud upon her nor knew of any committed by the husband." This is so because, as stated in the same decision, "While a married woman can not bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband, . . she may nevertheless contract, and by an original undertaking on her part may bind her separate estate, for the purchase-price of property, even though she may, with the knowledge of the seller, turn the property bought over to her husband." "Where the creditor, at the time of creating the debt, really intends, in good faith, to extend the credit to the woman and not the man, and the consideration, as the writings are constructed, passes legally and morally to her, and she executes writings adapted to the nature of the transaction which purport to bind her for the debt as her own, then, whatever may be the private understanding between her and her husband, unknown to the creditor and of which he has no reasonable grounds for suspicion, as to how or by whom the consideration is to be enjoyed, the writings are to be treated as embracing the true substance of the actual contract on both sides. Nor does it matter, in such case, that the creditor's negotiations are all with the husband. The latter is competent to represent the wife as her agent, and this agency, like any other, if not actually created beforehand, may be manifested by ratification. If the wife executes papers which by their nature import a ratification of the previous negotiations, and the acceptance of the terms and stipulations incorporated in the writings themselves, she is no less bound than if she had negotiated in person." Schofield v. Jones, 85 Ga. 816, 819 (11 S.E. 1032). See Meeks v.Withers, 181 Ga. 787 (184 S.E. 604), and cit. The law will not permit a wife to bind her separate estate by any contract of suretyship, or by any assumption of the debts of her husband, and any sale of her separate estate made to a creditor of her husband in extinguishment of his debts shall be absolutely void. Code, § 53-503. This provision of our law will be enforced regardless of the form of the transaction or the cloak that enfolds it, if in reality the contract is based on mere colorable transaction the purpose of which is to make the wife, to all intents and purposes, the husband's surety. See the authorities cited inMagid v. Beaver, 185 Ga. 669, 677-8 (196 S.E. 578).

The judge fairly and fully charged the jury on the contentions of the parties and the law on the controlling issues in the case. He submitted to them the question whether this transaction constituted but an effort to bind Mrs. Shoup's separate estate by indirection; whether or not, if such was the purpose, Mrs. Elliott had notice sufficient to reasonably put her on inquiry, that is, inquiry which would have led to notice that at the time Mrs. Shoup indorsed and delivered her note to Mrs. Elliott they were given in assumption of a pre-existing debt of the husband. He charged them that the sales agreement between the husband and Mrs. Elliott created a liability on the part of Mr. Shoup to Mrs. Elliott, and would constitute an indebtedness within the meaning of the law that a wife can not sell her property in extinguishment of her husband's indebtedness. He submitted to them also the question whether an original agreement between Mr. Shoup and Mrs. Elliott had been abandoned, and whether or not a separate and distinct contract had been entered into between Mrs. Elliott and Mrs. Shoup. He instructed them to ascertain whether the old contract was abandoned, and whether the contract as finally executed was one which Mrs. Shoup made with an understanding of what was being done, and intended to bind her separate estate for the payment of her own debt, and not that of her husband. A careful perusal of the judge's charge demonstrates that he gave the plaintiff in error the benefit of her every contention. An examination of the evidence discloses that the jury were authorized to find against the plea.

The special grounds of the motion have been examined and have been dealt with in the headnotes. There was no error in overruling the motion for a new trial.

Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the Justices concur.