Barnes v. Downing Co.

The Downing Company foreclosed a security deed against D. W. Barnes, his wife, Mrs. S. J. Barnes, and A. C. Laslie. The latter, however, is not a party in this case, not having been served. The plaintiff prayed for a judgment against the defendants, for the amount of notes secured by the deed, as well as for an amount due on open account for advances and supplies declared on in the petition. The notes so secured were for the aggregate principal sum of $4,000, $3,200 of which it was alleged represented the purchase-price of certain turpentine lands alleged to have been purchased by the defendants from the plaintiff; the balance was to secure advances claimed to have been made by the plaintiff. D. W. Barnes and Mrs. S. J. Barnes filed an answer denying plaintiff’s right to recover. In the answer it was alleged that Mrs. Barnes was not a member of the firm of Barnes & Laslie, and that she was not bound, for the reason that the notes declared on were promissory obligations of D. W. Barnes and A. C. Laslie, her relation to them being that of surety only; and that she, being a married woman, was not liable thereon. D. W. Barnes alleged that the consideration of the notes had failed in part, by reason of the failure of the title to certain tracts of land that were conveyed to Barnes & Laslie as a part of the turpentine farm; and he sought to recoup certain items of damage he claimed to have sustained by reason of the breach of an alleged contract whereby, as he contended, the plaintiff bound itself to furnish to Barnes & Laslie additional advances and supplies with which to carry on their turpentine business. The case was referred to J. G. Cranford as auditor, who filed his report finding in favor of the plaintiff and against Mrs. Barnes for the amount of the notes declared on, with interest, and against [366] D. W. Barnes for not only the amount of the notes but for the amount due on the open account as well. To this report, D. W. Barnes and S. J. Barnes filed exceptions of law and exceptions of fact. The case .came on for hearing on the exceptions to the auditor’s report; and upon motion of counsel for the plaintiff the court dismissed the exceptions of law for insufficiency, and declined to approve the exceptions of fact, and they were disallowed. The defendants excepted, assigning error upon the judgment overruling and dismissing the exceptions of law and fact, and upon the final decree entered upon the auditor’s report. J. B. Hides, for plaintiffs in eror. W. G. Little and E. K. Wilcox, contra.