99 Ga. 408 | Ga. | 1896
The official report contains a correct synopsis of the original pleadings in the case, and a correct statement of the grounds of the motion for new trial.
Hpon the trial it was shown that Scott, one of the defendants, jointly with Humphries, the plaintiff, was interested in certain real estate. Humphries sold his interest in this real estate to Scott, and at the time of sale made an agreement with Scott, that l;e could appropriate the amount of money due by Scott to Humphries to the payment of a debt due by Humphries to one Healey. To this arrangement Scott assented. He subsequently sold the property to another person, taking his notes therefor, and
The question is, is Austell liable to Humphries either in consequence of the breach of his contract made with Scott, or in consequence of his failure and refusal to make good the direct promise to Humphries to save him harmless as against the Healey debt? The plaintiff declares upon the express promise, joint and several, alleged to have been made by Scott and Austell with him to pay the Healey debt. Does he establish such a privity between himself and Austell as to authorize a recovery against him?
Nor do we think the parol promise of Austell made to Humphries, after the appropriation of the notes by him, was supported by such a consideration as to make it binding. It does not appear that Humphries paid anything to Austell to induce the promise; it does not appear that he parted with any property upon the strength of the promise; that his position was in any manner changed in consequence of the promise. It does not appear that he was induced to do any act, or to forbear the doing of any act, to the advantage of Austell or to his own injury, in •consequence of the promise. Therefore, while there might have been behind it the element of a strong moral obligation which should appeal to the conscience of Austell, there was no such consideration as will, in law, authorize the ■enforcement of the promise as .a legal agreement. It was ■.•nudum pactum, and not capable of being enforced.
Without dealing specifically, then, with each of the
Judgment reversed.