April 14, 1927. The opinion of the Court was delivered by This is an action by the respondent against the appellant commenced by the service of a summons and complaint in January, 1926, for judgment for the sum of $1,321.64, and interest thereon at 7 per cent. from April 1, 1924, alleged to be due to respondent for lumber, building material, and supplies, alleged to have been sold and delivered to the appellant by the respondent and used by the appellant in erecting and repairing buildings on land owned by her in Anderson County. The appellant, in her answer, denied all of the material allegations of the complaint. The case was tried by a jury at the March (1926) term of Court of common pleas for Anderson County before Hon. C.A. Mays as presiding Judge, and resulted in a verdict for the plaintiff-respondent for the sum of $1,297.53, the full amount sued for less the interest; his Honor, the presiding Judge, having directed that no interest could be allowed. Motion was made by the defendant for a new trial upon grounds hereinafter referred to. The motion for a new *Page 311 trial being overruled, the defendant served due notice of intention to appeal to this Court from the judgment of the lower Court.
The defendant's appeal is presented under seven exceptions which need not be restated here for the reason that the same will be reported.
Before taking up the exceptions for consideration, we shall refer briefly to the issues presented at the trial.
The plaintiff did not have the transaction direct with the defendant, but the transaction was with the husband of the defendant. The plaintiff contended on trial of the case that the husband of the defendant was the agent of the defendant and received the lumber, building material, and supplies from the plaintiff as such agent of the defendant for the use and benefit of the defendant, to be used on the lands of the defendant, with the knowledge, acquiescence, and authority of the defendant; and, further, that the defendant, having permitted her husband to act as her agent generally having permitted him to transact her business for her, and having held him out to the community as her agent for the purpose of transacting all of her business, she is now estopped from denying that her husband was her agent in this transaction, and that therefore the defendant should be held liable. The defendant contended on the trial of the case that her husband alone was responsible and liable for the alleged indebtedness and, further, that the plaintiff had waived any right of action it might have had against the defendant by accepting payments from the husband on the account and by later accepting a note for the balance of the account executed by the husband of the defendant in his individual name, contending that the plaintiff thereby elected to hold the alleged agent instead of the alleged principal, and that therefore the plaintiff cannot now hold the defendant.
No question was raised by the defendant as to the amount owing the plaintiff, and it was also admitted that the lumber, *Page 312 building material, and supplies were received from the plaintiff to be used in erecting and repairing buildings for the defendant on the land of the defendant in Anderson County, and that the lumber, building material, and supplies were used on defendant's said land in the erection and repairing of buildings thereon; the greater part of the same being used in the construction of a dwelling in which the defendant and her husband reside.
Considerable testimony was offered tending to prove that the husband of the defendant was the agent of the defendant as to all of her business, and especially as to the transaction involved herein. The defendant, in her testimony, on cross-examination as to her husband acting as her agent, responded as follows: "Q. He is your general agent, isn't he? A. He transacts my business."
At the close of all the testimony, no motion being made by either of the parties litigant, his Honor charged the jury as to the law on all of the issues involved and submitted the case to the jury. The jury having returned a verdict for the plaintiff for the full amount asked for, less the interest, as hereinbefore stated, the defendant made a motion for a new trial, which motion was overruled.
The first, second, and fourth exceptions of appellant impute error to the presiding Judge in charging on the facts. After a careful consideration of the charge complained of, the Court is clearly of the opinion that the same did not constitute a charge on the facts. The language of his Honor, referred to under these exceptions, by reason of which the appellant imputes error to his Honor on charging on the facts, was descriptive and could not have misled the jury. Furthermore, everything here is stated hypothetically, and the Court is clearly of the opinion that the language used by his Honor could not be construed to be a charge on the facts, especially when taken in connection with his general charge. *Page 313
Under these exceptions, the appellant also imputes error to his Honor in limiting and confining the defenses available to the defendant, in the event general agency was established, to a release of herself by the plaintiff, and thereby excluding from the consideration of the jury all of the evidence tending to establish any and all of the defenses of the defendant except a release of herself by the plaintiff, etc., and, further, in not including certain elements of estoppel in the charge. It appears to the Court that if the language of his Honor complained of by the defendant-appellant is taken in connection with his general charge and in connection with appellant's special written requests, which his Honor charged, the same will be seen to be full and sufficiently clear for the jury to comprehend and render a fair verdict in the case, which is the purpose of every charge to a jury. Furthermore, if the appellant had any apprehension that the charge was not clear and comprehensive, it was incumbent upon appellant, under the rule, to call the matter to the attention of the Court and present such request as might be necessary to enable the jury to fully comprehend and perform the duty devolved upon the jury. This the appellant did not do.
The appellant's third exception is as follows:
"That the Court erred in refusing to charge defendant's third request, which was as follows: `A person having full knowledge of the principal, who accepts the note of the agent, elects to hold the agent and relieve the principal from liability.'"
The Court is of the opinion that the presiding Judge properly refused to charge the request in the language presented. In order for this principle to be applied, it must be shown that the note was given and received in payment. In Volume 2 of Corpus Juris, p. 837, the rule is stated thus: "So where an agent gives his own note to a third person who has full knowledge of the principal, his acceptance generally constitutes an election to extend credit exclusively *Page 314 to the agent and relieve the principal from liability, but not when it appears that such note was not given or received in payment." In the case of Keller v. Singleton, 69 Ga. 703, the Court lays down this rule that "if a vendor sells goods to an agent for his principal, and takes the promissory note of the agent for the * * * price this, without more, will not operate as payment of the debt of the principal; and on failure of payment by the agent, the principal will be liable to an action founded on the original consideration." In the case of Rathbone v. Tucker, 15 Wend. (N.Y.), page 498, that Court expressed an opinion similar to the opinion expressed in the Georgia case. The Court is further of the opinion that the presiding Judge charged the law fully and correctly on every proposition and that his charge was fairly and clearly presented.
The remaining exceptions 5, 6, and 7 impute error to his Honor in refusing to grant a motion for a new trial on the several grounds set forth in these exceptions. Under rule 77 of the Circuit Court, appellant having failed to make a motion for a nonsuit or a motion for the direction of a verdict, the question cannot now be raised in this Court, and counsel for appellant has properly abandoned these exceptions.
The charge of the presiding Judge and the appellant's exceptions will be reported.
The exceptions are therefore overruled, and it is the judgment of the Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN and STABLER, and MR. ACTING ASSOCIATE JUSTICE R.E. WHITING, concur. *Page 315