Silas v. Adams , 92 Ga. 350 ( 1893 )

Judgment affirmed.

P. B. Silas testified: The firm was composed of myself and P. M. Silas, my father. He gave little if any attention to the business. I had charge of it, and had no help except plaintiff, whom I hired at the time he said, for the length of time he said and for the price he says, and owe him the amount he says. The amount he claims to have loaned the firm was simply placed by him in the cash drawer, and he afterwards got out $292; so if we owe him anything, we owe him for his services. The work he did at the store was that of a man of all work; he did all of the labor such as packing and delivering goods, lifting heavy packages, etc. On the dissolution I assumed all liabilities. Plaintiff came to me about August 1, and wanted a settlement. I could do nothing for him except give him a note which he demanded, and I gave one signed by myself; he was not satisfied, and I gave him one signed F. B. Silas. & Co. I signed it without the knowledge or consent of P. M. Silas, who was then out of the business. The debt was past due when the note was given, and by the terms of the note the time of payment was extended until December 1, 1891. I made an assignment of my stock of merchandise on September 9, 1891, and on the same day before the assignee took charge, the sheriff closed up my business under a mortgage fi-fa. My father never knew that I had signed the note F. B. Silas & Co. I never told him of it, and he had no opportunity to know it, until afterwards. After I had signed the note F. B. Silas & Co., I told him about it.

After verdict for the plaintiff, defendants moved for a new trial on the following among other grounds :

Errors in charging the jury : (a) “If you believe the plaintiff did not accept the note in full settlement, he would have the right to sue on either the note or the account, and the question of whether or not P. M. Silas signed that note would not necessarily enter into your consideration.” (b) “If you believe that F. B. Silas had a right to bind P. M. Silas by so signing that note, then you would be justified in so saying—in giving a verdict against both of them.” (c) “ If you believe further from the testimony, that F. B. Silas had express authority of his other partner to sign that note, and -he did sign it m closing up the partnership debts of the firm, and that P. M. Silas ratified the act, either by acquiescence or a sufficient .length of silence, he would be bound by it— just as liable and bound by it if he had signed it himself.” (d) “You should look to the merits in this case.”

Error in refusing to charge: “ If you believe that the debt owing the plaintiff", and the one for which he sues, or any part of it, is owing for services rendered, by tbe plaintiff to the defendants while they were in business, in capacity of a laborer and man of all work doing manual labor about defendants’ business, and that the same was due and owing on the 10th day of August, 1891, for said service, then I charge you that the plaintiff had a lien upon the partnership assets for his labor so rendered ; and that if he at said time accepted a promissory note for said sum, extending by its terms the time and manner of payment and thereby changing the status and dignity of his debt, and all without consent of defendant P. M. Silas, then I charge you that it would be a novation of said contract so far as P. M. Silas was concerned, and that if his liability was thereby increased, then P. M. Silas is released and no recovery can be had against him.”

Error in refusing to allow E. B. Silas to testify, that at the time he gave the note he had on hand in stock at least $1,250 worth of the goods that the firm had when they dissolved and when plaintiff’ worked for them.

Thornton & McMichael, for plaintiffs in error. Miller & Miller, contra.