Finch v. Barclay

Bleckley, Chief Justice. 1. The court erred in withholding from the jury so much of the defence as related to selling by weights and measures not duly marked. True, the code, §1592, directs that “When such standards are obtained, it is the duty of such ordinary to give sixty days’ written notice thereof at the door of the court-house, and in the public gazette where the sheriff of the county advertises his sales,” and there was no affirmative evidence that such notice had been given. But the law presumes that a public officer performs all his official duties, and the effect of this presumption is to dispense with proving the fact otherwise when it comes collaterally in question. Moreover, this provision of the code is simply directory to the officer, and failure to comply with it would not relieve the citizen from his express statutory obligation to have his weights and measures duly marked before proceeding to make sales by them. 2. Section 1589 of the code is in these words : “ All [396] persons engaged in selling by weights and measures shall apply to the ordinaries of their respective counties,- and have their weights and measures so marked, and in default thereof shall not collect any account, note or other writiug, the consideration of which is any commodity sold by their weights and measures.” It was affirmatively proved in this case that the creditor sold by his weights and measures, and that they were not marked as required. That this was a good defence to so much of the action as sought a recovery for the price of the commodities so sold, there can be no doubt. It admits of grave question, however, whether such an infirmity as to a part of the consideration of the note' and mortgage will vitiate the whole, or whether there may be a recovery for so much of the consideration as arose out of other dealings between the parties. This question was not passed upon by the superior court, nor was it argued here in a way to enable us to settle it satisfactorily without further argument. Section 2745 of the code declares that: “ If the consideration be good in part and void in part, the promise will be sustained or not, according as it is entire or severable, as hereinafter prescribed. But if the consideration be illegal in whole or in part, the whole promise fails.” Ought the consideration of a pi-omissory note, in so far as it embraces the price of goods or commodities sold by unmarked weights and measures, to be treated as merely void, or should it be treated as illegal ? If the former, the balance of the note would be collectible ; if the latter, such balance would probably not be collectible by an action on the note itself, but only by an action upon the original promise or contract apart from the note. Some of the authorities which will serve to throw light on the subject are the following, the cases more specially applicable being these: Scott v. Gilmore, 3 Taunt. 226 ; Cotten v. McKenzie, 57 Miss. 418 ; Sheerman v. Thomp [397] son, 11 Ad. & El. 1027 ; Sawyer v. Smith, 109 Mass. 220 ; Eaton v. Kegan, 114 Mass. 433 ; Wheeler v. Russell, 17 Mass. 258 ; Miller v. Post, 1 Allen, 434 ; Hewes v. Platts, 12 Gray, 143 ; Spencer v. Smith, 3 Camp. 9. On the general subject, see Tiedeman on Com. Paper, §179 ; 2 Randolph on Com. Paper, §537 ; 1 Daniel on Neg. Instr. §204 ; Wood’s Byles on Bills, p. *146 ; Bennett’s Benj. on Sales, §538 ; Pollock on Contracts, p. 321 ; 1 Addison on Contracts, §300 ; In re Stowe, 6 N. B. R. 429 ; Corbett v. Woodward, 5 Sawy. 404 ; Feldman v. Gamble, 20 N. J. Eq. 494 ; Chandler v. Johnson, 39 Ga. 85 ; O’Byrne v. Savannah, 41 Ga. 331 ; Taliaferro v. Moffett, 54 Ga. 150 ; Allen v. Pearce, 84 Ga. 606 ; Bishop v. Palmer, 146 Mass. 469, 4 Am. St. Rep. 339. 3. A married woman cannot make any valid contract of suretyship, hut she can enter into an original undertaking to pay for goods bought on her own credit for the use of her son. Freeman v. Coleman, 86 Ga. 590, 12 S. E. Rep. 1064. Her separate note and mortgage would be prima facie, but not conclusive, evidence that her relation to the debt is that of a principal and not that of a surety. 4. There surely can be no doubt that a witness may refresh his memory by a memorandum taken from his books, if after so refreshing it he can and does testify to the facts from his own recollection. The court erred in not granting a new trial. Judgment reversed.