
    24788.
    Frankel et al. v. Davison-Paxon Company et al.
    
    Decided July 2, 1935.
    
      Louis M. Tatham, Louis Burton, for plaintiffs in error.
    
      Houston While, David Gershon, contra.
   Sutton, J.

The plaintiff mercantile establishment sued Mack Frankel, Mrs. Mack Frankel, Lazar Frankel, and Mrs. Lena Frankel, on an open accormt. A verdict and judgment were rendered against M. Frankel. A new trial was granted at his instance,. and the second trial resulted in a verdict and judgment against him and his wife. From the judgment overruling their motion for new trial the defendants appealed to the appellate division of the trial court, and the judgment was affirmed. They sued out a writ of error, making the plaintiff and the other two defendants parties defendant in error. Meld:

1. The first verdict and judgment in the plaintiff’s favor being only against M. Frankel, and the plaintiff having apparently acquiesced therein, the other defendants were out of the ease, and upon the grant of a new trial to M. Frankel and a second trial, it was not proper to find a verdict in the plaintiff’s favor and against any of the' other defendants in whose favor the first trial resulted. The result of the first trial was, in effect, a verdict in favor of all defendants except M. Frankel; and no appeal therefrom or exception thereto having been taken, the same was a bar to any further action against these defendants upon the same cause of action. It follows that the verdict and judgment against Mrs. M. Frankel upon the second trial was contrary to law.

2. In a suit against a husband on account of merchandise sold to the wife as the alleged agent of the husband, it was error to reject evidence tending to show that the wife told the plaintiff that the goods would be bought upon her own account, that she would be responsible therefor, that her husband gave her an allowance, and that the goods would be paid for out of such allowance, and that this was the understanding, such evidence going to show that the transaction was an original undertaking by the wife and that the credit was extended to her, all of which was known and understood by the plaintiff. Mitchell v. Treanor, 11 Ga. 324 (56 Am. D. 421); Morris v. Root, 65 Ga. 686; Goodson v. Powell, 9 Ga. App. 497 (71 S. E. 765); Adler v. Morrison, 15 Ga. App. 139 (82 S. E. 783); Manley v. Chamberlin-Johnson-Dubose Co., 41 Ga. App. 31 (151 S. E. 676); Hutchings v. Snyder, 49 Ga. App. 551 (176 S. E. 794); Code of 1910, § 2996, Code of 1933, § 53-510.

3. It follows that the trial judge erred in overruling defendants' motion for new trial, and that the appellate division of the trial court erred in affirming that judgment.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.  