Cornelia Planing Mill Co. v. Wilcox , 129 Ga. 522 ( 1907 )

Beck, J.

(After stating the facts.)

1. Error is assigned upon the ruling of the court in refusing to permit a witness for the plaintiff to testify that “he [witness] found the property was in her [defendant’s] name.” Even if this were not secondary evidence, it does not appear from what source the witness derived this information. Standing alone, the evidence shows upon its face that it was merely a conclusion of the witness, based upon information, the verity of which does not appear. The witness should have stated the facts and allowed the jury to find in whose name the property was.' So far as the record discloses, the witness’s so-called knowledge of the ownership of the property was derived entirely from hearsay; and the court did not err in rejecting this testimony. Lamar v. Pearre, 90 Ga. 377.

2. The other portions of the testimony of the same witness, the exclusion of which is complained of in the next assignments of error, show affirmatively that the witness was testifying from hearsay: “Witness D. N. Boling further swore that he found out that M. C. Wilcox was acting [as agent] for Mrs. I. R. Wilcox, and that he got his information from his attorney,” and when he “found out that M. C. Wilcox was acting for her [defendant], he changed it [the account] to her name.” There was no error in rejecting this testimony. Civil Code, §5175.

3. Complaint is also made in the bill of exceptions of the refusal of the court to permit the plaintiff to introduce in evidence “'a suit and fi. fa. of the Patillo Lumber Co. v. I. R. Wilcox and M. C. Wilcox as the agent of I. R. Wilcox, for the -purpose of showing that M. C. Wilcox acted as agent -for his wife, I. R. Wilcox,” and “the proceedings in a case of W. D. Hill Lumber Co. v. I. R. Wilcox, original summons, plea, judgment, fi. fa., and all the entries thereon, for the purpose of proving that M. C. Wilcox acted as agent for his wife, I. R. Wilcox.” The 'records thus offered and rejected are not set forth in the bill of exceptions nor attached thereto as an exhibit, and the above is not a sufficient description to enable this court to determine whether said records were pertinent and material. McElhannon v. State, 99 Ga. 672.

4. The next exception, to wit, “W. D. Hill was sworn as a witness, whose evidence appears in the brief of evidence in this ease . . the court ruled out W. D. Hill’s evidence, to which ruling plaintiff excepted,” is not a sufficient assignment of error, and raises no question for decision. Tompkins v. Compton, 97 Ga. 375; Russell v. Mohr-Weil Lumber Co., 115 Ga. 35; Sayer v. Brown, 119 Ga. 539.

5. The only question that remains to be decided is whether the court erred in granting a nonsuit. It is contended by plaintiff’s counsel that there are sufficient circumstances in the ease to authorize the inference that M. C. Wilcox acted as agent for his wife, the defendant, in purchasing the lumber from the plaintiff. In the case of Akers v. Kirke, 91 Ga. 590, it was said, “Where all the consideration of a debt reaches a wife as an accession to her separate estate, and she retains and enjoys it, only slight evidence of the husband’s agency in contracting the debt is required to charge her.” See also Pinkston v. Cedar Hill Nursery Co., 123 Ga. 302. But in the case of Blount & Morel v. Dugger, 115 Ga. 109, it was held that “The mere fact that the wife may be the owner of a tract of land, upon which a house is erected out of materials. furnished solely on the credit of her husband, will not render her liable for the value of such materials, nor authorize a judgment against her for the same on the theory that she was the concealed principal' of her husband, where there is no evidence that he was in any way acting as her agent when he purchased the materials.” An examination of the record in the case just cited discloses that the defendant, Mrs. Dugger, “called to see the house every day while it was being built, . . and has enjoyed the benefits and profits of it ever since.” See, in this latter connection, the case of Hightower v. Walker, 97 Ga. 748.

The only evidence in the present case to connect Mrs. Wilcox with the sale of the lumber was the fact that she owned the lot upon which the house was built, and that she was at the house during part of the time that the work was being done, and directed some slight changes to be made. Plaintiff did not testify that he extended the credit to Mr. Wilcox on the faith of the latter owning Ibe bouse, nor was it contended tbat Mr. Wilcox led the plaintiff to believe tbat be owned tbe property. Tbe lumber was delivered at plaintiff’s mill to a servant of Mr. Wilcox, and, so far as tbe evidence discloses, nothing was said as to how or where it should be used. It also appears from the plaintiff’s evidence that the person employed to build the house was the employee, not of Mrs. Wilcox, the defendant, but of Mr. Wilcox. Admitting all the facts proved and all reasonable deductions from them, we do not think that there was any evidence, either direct or circumstantial, to show the husband’s agency in contracting the debt with the plaintiff ; and the court did not err in granting a nonsuit. See, in this connection, Reaves v. Meredith, 123 Ga. 444.

Judgment affirmed.

All the Justices concur, except Holden, J.t who did not preside.