1. There was no error in excluding from evidence that portion of the testimony of the defendant as to why she indorsed these notes and transferred the loan deed to Mrs. Elliott, her answer being "because he [her husband] had made a contract with Mrs. Elliott [plaintiff], and he could not have fulfilled that contract if I hadn't done it;" and further, that "I did so he could get the lot;" the objection to this evidence being it was a mere conclusion and opinion evidence. The motive of the party, not shown to have been disclosed to the other, was irrelevant. Huger v. Protestant Episcopal Church, 137 Ga. 205 (6) (73 S.E. 385).
2. To permit the plaintiff in the original suit while on the witness stand to testify that she was to sell this property "under whatever contract was made; that was the clear understanding; the words of it may or may not bear it out, but that was clearly understood at the time of the transaction," she having immediately before testified that "I was selling *Page 859 Mrs. Shoup the property," was not, under the issues made in the pleadings, subject to the objection that the quoted testimony was contrary to the written contract, and not the highest and best evidence.
3. For the same reason it was not error to exclude, as not responsive and as calling for a conclusion at variance with her written contract, the answer of the plaintiff as a witness to the question, "So if this deed was made to any one other than the contracting parties here, it was a matter between you and Mr. Sams, wasn't it, who was preparing the papers for you?" the answer being, "I don't know any way to answer your question, except that Mr. Sams made the deed according to the agreement."
4. A new trial will not be granted because of a refusal of requests to give in charge to the jury stated instructions, when it appears that these instructions were substantially covered by the charge as actually delivered.
5. A request for the judge to charge the jury that "any contract for the sale of land, to be binding on the contracting parties, must be in writing and signed by the parties to be bound thereby," was properly refused, since it was relevant to no issue in the case on trial.
6. The attack on the excerpt of the court's charge to the jury, pointed out in ground numbered 10 of the motion for new trial, is without merit; the portion of the charge here excepted to being adjusted to the issues made by the pleadings and the testimony, and containing correct principles of law applicable thereto, which principles are referred to and discussed in the opinion.
7. The evidence was sufficient to sustain the verdict, and the refusal to grant a new trial will be affirmed.
On the trial of the issue thus made evidence was submitted in support of the contentions of the parties. In evidence was a writing which on its face purported to be a contract whereby for a stated price the plaintiff obligated herself to sell, and Mr. Shoup to buy from her, the lot in Fulton County above referred to. Other testimony tended to prove the defense outlined above. The jury found for the plaintiff. Mrs. Shoup moved for a new trial on general and special grounds. The motion was overruled, and she excepted, assigning error on that ruling and on the court's ruling on demurrers. It is the contention of counsel for the plaintiff in error that there was only one contract, confirmation whereof was expressed in the papers indorsed by and signed by Mrs. Shoup, and that she pledged her own property and credit to secure the obligation of her husband. On the other hand it is contended that the initial written agreement between Mrs. Elliott and Mr. Shoup was abandoned, and that a separate and distinct contract was entered into between the parties, and that this latter amounted to an original undertaking on the part of Mrs. Shoup which was binding upon her. Parties may by mutual consent abandon a contract so as to make it not thereafter binding.Evans v. Cherokee Iron Co., 73 Ga. 459 (3). This principle has been applied to an executory contract for the sale of land.Manley v. Underwood, 27 Ga. App. 822 (110 S.E. 49). A contract may be rescinded by agreement, although the evidence thereof may be by conduct and not by words. 12 Am. Jur. § 431. When a new contract in relation to the sale and purchase of this land was entered into by Mrs. Elliott and Mr. Shoup and another, this could ordinarily have no other effect than evidencing the fact that the first agreement between Mrs. Elliott and Mr. Shoup had been rescinded by mutual agreement, or abandoned. The judge submitted to the jury the question whether or not there had been an abandonment of the original agreement *Page 862 signed by Mrs. Elliott and Mr. Shoup, and there was evidence sufficient for them to find that it had been abandoned. If such was the case, then in no sense could it be said that at the time of the transaction now under investigation Mrs. Elliott was the creditor of Mr. Shoup. While a married woman may not contract a debt of suretyship that will bind her, she may as an original undertaker become liable on a debt incurred by her, although she derives no benefit therefrom. Freeman v. Coleman, 86 Ga. 590 (12 S.E. 1064); Tuggle v. Duke, 42 Ga. App. 634 (157 S.E. 224); Saxon v. National City Bank of Rome, 169 Ga. 784 (151 S.E. 501). The ruling in Gibson v. General MotorsAcceptance Corporation, 46 Ga. App. 201 (2) (167 S.E. 203), is sound, to wit, that "Where a married woman enters into an unambiguous written contract whereby she becomes the owner of personality, and agrees to pay a stipulated price therefor, she is bound by her obligation as purchaser, if the seller committed no fraud upon her nor knew of any committed by the husband." This is so because, as stated in the same decision, "While a married woman can not bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband, . . she may nevertheless contract, and by an original undertaking on her part may bind her separate estate, for the purchase-price of property, even though she may, with the knowledge of the seller, turn the property bought over to her husband." "Where the creditor, at the time of creating the debt, really intends, in good faith, to extend the credit to the woman and not the man, and the consideration, as the writings are constructed, passes legally and morally to her, and she executes writings adapted to the nature of the transaction which purport to bind her for the debt as her own, then, whatever may be the private understanding between her and her husband, unknown to the creditor and of which he has no reasonable grounds for suspicion, as to how or by whom the consideration is to be enjoyed, the writings are to be treated as embracing the true substance of the actual contract on both sides. Nor does it matter, in such case, that the creditor's negotiations are all with the husband. The latter is competent to represent the wife as her agent, and this agency, like any other, if not actually created beforehand, may be manifested by ratification. If the wife executes papers which by their nature import a ratification of the previous negotiations, and the acceptance of the terms *Page 863 and stipulations incorporated in the writings themselves, she is no less bound than if she had negotiated in person." Schofield v. Jones, 85 Ga. 816, 819 (11 S.E. 1032). See Meeks v.Withers, 181 Ga. 787 (184 S.E. 604), and cit. The law will not permit a wife to bind her separate estate by any contract of suretyship, or by any assumption of the debts of her husband, and any sale of her separate estate made to a creditor of her husband in extinguishment of his debts shall be absolutely void. Code, § 53-503. This provision of our law will be enforced regardless of the form of the transaction or the cloak that enfolds it, if in reality the contract is based on mere colorable transaction the purpose of which is to make the wife, to all intents and purposes, the husband's surety. See the authorities cited inMagid v. Beaver, 185 Ga. 669, 677-8 (196 S.E. 578).
The judge fairly and fully charged the jury on the contentions of the parties and the law on the controlling issues in the case. He submitted to them the question whether this transaction constituted but an effort to bind Mrs. Shoup's separate estate by indirection; whether or not, if such was the purpose, Mrs. Elliott had notice sufficient to reasonably put her on inquiry, that is, inquiry which would have led to notice that at the time Mrs. Shoup indorsed and delivered her note to Mrs. Elliott they were given in assumption of a pre-existing debt of the husband. He charged them that the sales agreement between the husband and Mrs. Elliott created a liability on the part of Mr. Shoup to Mrs. Elliott, and would constitute an indebtedness within the meaning of the law that a wife can not sell her property in extinguishment of her husband's indebtedness. He submitted to them also the question whether an original agreement between Mr. Shoup and Mrs. Elliott had been abandoned, and whether or not a separate and distinct contract had been entered into between Mrs. Elliott and Mrs. Shoup. He instructed them to ascertain whether the old contract was abandoned, and whether the contract as finally executed was one which Mrs. Shoup made with an understanding of what was being done, and intended to bind her separate estate for the payment of her own debt, and not that of her husband. A careful perusal of the judge's charge demonstrates that he gave the plaintiff in error the benefit of her every contention. An examination of the evidence discloses that the jury were authorized to find against the plea. *Page 864
The special grounds of the motion have been examined and have been dealt with in the headnotes. There was no error in overruling the motion for a new trial.
Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the Justices concur.