Bateman v. Cherokee Fertilizer Co.

Jenkins, J. 1. Error can not be successfully assigned upon the court’s failure to submit to the jury instructions as to defenses which, though pleaded, are not supported by any evidence. American Ins. Co. v. Bailey, 6 Ga. App. 424 (6) (65 S. E. 160) ; Bullard v. Brewer, 118 Ga. 918 (3) (45 S. E. 711). Grounds 10 and 14 of the motion for a new trial are therefore without merit, under the view which this court takes of the evidence. 2. Where a wife enters into an unambiguous written contract whereby she is to become the owner of certain timber, 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, notwithstanding the fact that by reason of such purchase an indebtedness of the husband, based upon a prior sale of the same property to him, was to be cancelled. Where the purpose, object, and effect of the contract are that the wife shall pay only for what she bought, the debt is as much her own as if there ha'd been no previous sale of the property to her husband. Hull v. Sullivan, 63 Ga. 127; Strickland v. Gray, 98 Ga. 667 (27 S. E. 155). The excerpts from the charge of the court contained in grounds 2, 3, and 4 of the amendment to the motion for a new trial were therefore not erroneous. 3. The jury having returned no verdict against the defendant on the second and third counts of the plaintiff’s petition, which were based upon open accounts, there is no merit in the assignments of error contained in grounds 7 and 8 of the motion for a new trial. 4. The verdict is sustained by the evidence, and, in view of the rulings . above made, there is no merit in the other grounds of the motion for a new trial. Judgment affirmed. Wade, C. J., and Luke, J., concur.