Smith v. Holbrook, Glazier & Co. , 99 Ga. 256 ( 1896 )

Lumpkin, J.

1. Where a clerk, who was left in general charge of a mercantile establishment (luring the absence of the proprietor, ordered goods appropriate to the conduct of the business which were received’ and placed in stock, and the proprietor, upon .ascertaining these facts, did not, within a reasonable time, countermand the order and offer 'to return the goods, he was bound to pay for the same, although in the first instance the clerk may have transcended his authority in ordering the goods, it appearing that hie want of authority was unknown to the seller.

2. Under the pleading act of 1893, a mere plea of “n'ot indebted,” it being simply a plea of the general issue, does not in law amount to a denial of averments distinctly -and plainly made in the plaintiff’s petition, and all such averments not otherwise denied are to be taken as prima facie true.

3. Accordingly, where the action was upon an open account, with appropriate allegations, a plea of the nature above indicated raised no issue as to the correctness of the amount of the account sued upon.

4. The contents of letters cannot be 'proved by parol, notwithstanding the fact that they were addressed to and remained in the possession of a non-resident plaintiff, no notice to produce the same having been served upon the local attorney of such plaintiff. As their production could have been compelled in this manner, the letters were not “inaccessible.”

5. There was no error in directing a verdict for t’he plaintiff.

Judgment affirmed.

In addition to the general grounds, error is assigned upon the refusal of the court to allow defendant to testify that he had written -a letter to plaintiffs, stating that the goods were ordered without his authority -and would be held subject to their order.

Leon A. Wilson, for plaintiff in error. Hitch & Myers, contra