Nailor v. Bank of Menlo

Bell, J.

1. The bank recovered a judgment against the defendant, who was a married woman, in a suit upon a note under seal purporting to have been signed by her per her husband as agent. The defendant had filed a plea of non est factum. The evidence established without dispute that the note in question had been given merely as a renewal of other notes payable to the bank. Assuming that the evidence tended to show that the defendant might have been held liable upon such other notes, there being no evidence that her husband had been authorized by her under seal to bind her to a sealed instrument, and none to the effect that she had ever ratified the execution of the sealed note sued upon by a writing itself under seal, and nothing appearing by which she could be estopped, the judgment in the plaintiff’s favor (by the court without a jury) was unauthorized, and it was error to refuse the defendant’s motion for a new trial. Lynch v. Poole, 138 Ga. 303 (75 S. E. 158); Neely v. Stevens, 138 Ga. 305 (75 S. E. 159); United Leather Co. v. Proudfit, 151 Ga. 403 (1, 2) (107 S. E. 327); Williams v. Atlanta National Bank, 31 Ga. App. 212 (6), 224 (120 S. E. 658); Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465 (1) (120 S. E. 800).

2. Since the ease must go back for another trial upon all issues, at which the evidence may not be the same as in the trial under review, no opinion is expressed as to whether the evidence appearing in the instant record demanded a finding in favor of the plea of recoupment.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.