1 Ga. App. 327 | Ga. Ct. App. | 1907
Griffin sued Evans in the justice’s court, on the following account. ' "To amount of account advanced to Will Jordan, $39.46.” The defendant pleaded the statute of frauds. The evidence was, that in 1905 Jordan was working with 'Griffin as a cropper; in the fall J ordan ¡procured money from Griffin, promising to remain in his service until he repaid him with labor; in December Evans came to Griffin and told him that he had hired Jordan for the year 1906, to which Griffin replied that it would ho all right, but that Jordan owed him $39.42; and Evans said, "Well, I will pay it before I move him;” at the time he moved J ordan, Evans told Griffin that he had not sold his cotton, but that he would pay the amount as soon as he sold the cotton; he did not pay the sum so promised; the promise was oral. The plaintiff testified, that while he had not marked the account on his books against Jordan settled,"yet he no longer considered or claimed that he still retained the indebtedness against him. The jury in the justice’s court found a verdict in favor of the plaintiff, and the defendant brought' certiorari; which was overruled. To this the defendant excepts. '
The "promise to answer for the debt, default, or miscarriage of another,” required by the statute of frauds (Civil Code, §2693, par. 2) to be evidenced by writing, and not otherwise, is that collateral contract by which the second promisor becomes bound along with the original promisor; and does not include' an original undertaking whereby a new promisor,' for a valuable consideration between him' and the promisee, substitutes himself as the party who is to perform, and releases the original promisor from liability under the contract. Birkmyr v. Darnell, 1 Smith’s L. C. (8th ed.) 317, *326 (Salk. 27), and notes; Ferst v. Bank of Way-cross, 111 Ga. 229, and cit. We gather from the admirable brief filed by counsel for the plaintiff in error that this is conceded to be the correct rule; but it is insisted thatvthe contract between Evans and Griffin was nudum pactum, because Evans’s contract with J ordan was for the year 1906, while Griffin’s was only for the year 1905; it is inferentially insisted that since, under well-recognized decisions of the Supreme Court, Jordan could not have been prosecuted criminally for leaving Griffin in violation of his contract, no loss or damage accrued to Griffin by his so doing. This does not follow. Jordan had made a contract with his employer to work
Judgment affirmed.
