Bryan v. J. P. Allen & Co.

Eberhardt, Judge. 1. In this suit on account brought by J. P. Allen & Company against Bernard M. and Doreen Y. Bryan, formerly husband and wife, for items of clothing and cosmet [671] ics charged to the account by Mrs. Bryan during their marriage and also during a period of separation prior to their divorce, the evidence was sufficient to authorize the trial court, sitting without a jury, to enter judgment against the husband under Code §§ 53-508, 53-510, and did not demand a finding that credit was extended solely to the wife in her individual capacity or that the items purchased were not “necessaries.” Argued April 7, 1970 Decided April 15, 1970. Clein, Babush & Karp, Harvey A. Clein, for appellant. Schwall ■& Heuett, Emory A. Schwall, Smith, Cohen, Bingel, Kohler, Martin & Lowe, J. Arthur Mozley, for appellee. 2. The evidence showing that the husband voluntarily absented himself from the family abode at the time of the separation and that all the items at issue were charged prior to the husband’s written notice to the creditor to close the account, the creditor’s burden of proof within the meaning of Waxelbaum v. Citizens & So. Nat. Bank, 120 Ga. App. 312 (170 SE2d 333) and cases cited is sufficiently carried. Autrey v. Puritan Dairy Farm, 117 Ga. App. 239 (160 SE2d 278). 3. Since the evidence did not demand a finding that the debt was that of the wife individually, no reversible error appears in the overruling of the husband’s statute-of-frauds objection to the creditor’s testimony that he had orally agreed to pay the debt. 4. The creditor not having cross appealed from the finding in favor of Mrs. Bryan, the judgment discharging her from liability is final and is not reviewed. Judgment affirmed. Jordan, P. J., and Pannell, J., concur.