Rhodes v. Gunn

128 S.E. 213, 34 Ga. App. 115, 1925 Ga. App. LEXIS 54

• Court: Court of Appeals of Georgia
• Decided: May 19, 1925
• Docket: 16138
• Status: Published

Opinion

Bell, J.

1. The exception to the judgment overruling the demurrer to the petition, not having been referred to in the brief of counsel for the plaintiff in- error, is treated as abandoned. Atkinson v. Olmstead, 140 Ga. 100 (2) (72 S. E. 720) ; Union Warehouse Co. v. Roper, 21 Ga. App. 182 (1) (94 S. E. 74).

2. Although it is true that, where a married woman borrows money for the purpose of paying her husband’s debts, and the lender, though knowing of her purpose, is not the husband’s creditor who is thus to be paid, and is not a party to the arrangement or scheme between the husband and wife which results in the making of such contract by her, she will be liable for the money so borrowed (Rountree v. Rentfroe, 139 Ga. 290 (2) (77 S. E. 23) ; Garrett v. Thornton, 157 Ga. 487 (3) (121 S. E. 820); Longley v. Bank of Parrott, 19 Ga. App. 701 (1) (92 S. E. 232)), still a wife can not bind her separate estate by any contract of suretyship nor by any assumption of the debts of her husband (Civil Code (1910), § 3007), and “No superficial appearance will be permitted to lead the court away from the true inwardness of the transaction.” Gross v. Smith, 31 Ga. App. 95 (1) (119 S. E. 541).

3. The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Shepard v. Chappell, 29 Ga. App. 6 (2) (113 S. E. 23); Woods v. Mercantile Bank & Trust Co., 32 Ga. App. 106 (122 S. E. 819); Reaves v. Columbus Electric & Power Co., 32 Ga. App. 140 (2) (122 S. E. 824). Thus, whether the testimony of the husband and the wife, to the effect that the wife signed the note sued on merely as the husband’s surety, was of such a character that the jury would have been authorized to disbelieve each of these witnesses, and, thereupon, to base their finding solely upon the other evidence, it affirmatively and indisputably appears from the plaintiff’s own testimony that the bond for which the note was given was indorsed only to the husband, to whom it was delivered, that it was thereupon placed by him with his creditors, and that his wife received none of the proceeds thereof. Erom these circumstances, together with the others shown in the plaintiff’s testimony, construed reasonably against her, it conclusively appeared that the defendant wife signed the note only as surety. The verdict found in the plaintiff’s favor as to that defendant was therefore contrary to the evidence. Jones v. Weichsel, 115 Ga. 369 (41 S. E. 615).

Decided May 19, 1925.

4. This was a suit upon a contract, and not an action for fraud. Whether the lender could be defrauded into believing that a married woman could enter into a contract of suretyship, the mere fact that the defendant wife, together with her husband, may have known at the time of the transaction that her promise as a surety was not binding would not operate to change the rule and to render her liable on • the contract where otherwise she was not. Hood v. Duren, 33 Ga. App. 203 (2) (125 S. E. 787); Parks v. Simpson, 124 Ga. 523 (2) (52 S. E. 616) ; Peacock v. Horne, 159 Ga. 707 (5) (126 S. E. 813).

5. These rulings being controlling, it is unnecessary to pass upon the special assignments of error. Liverpool &c. Ins. Co. v. Hughes, 145 Ga. 716 (4) (89 S. E. 817); Edmondson v. State, 18 Ga. App. 233 (89 S. E. 189).

Judgment reversed.

Jenleims, P. J., amd Stephens, J:, concur. M. L. Felts, for plaintiff in error.. J. A. Mitchell, contra.