Ford v. Finney

35 Ga. 258 | Ga. | 1866

Walker, J.

The very learned Judge who presided in this cause dismissed the bill on the grounds, as we understand, that the contract between Ford and Finney was such as could not be enforced, being obnoxious to the statute of frauds. Code, see. 1952, clause 2. We think he erred. In the first place, we do not think Einney made any “ promise to answer for the debt delimit or miscarriage of another.” The contract, as we construe it, is this: Eord sells his interest in the city lot to Einney, and, in consideration of the written assignment of the title bond to Einney, he paid Ford four hunred dollars, and promised to pay to Bell & Gaskill thirty-eight hundred dollars more; that is, Einney purchases the lot, takes a bond for titles, and promises to pay thirty-eight hundred dollars in addition to the four hundred already paid to Eord. It is a simple contract of purchase and sale, and the only feature which distinguishes this from an ordinary contract is, that Finney promises to pay the thirty-eight hundred dollars to Bell & Gaskill instead of to Ford, or Ford, Bray & Co. This is the debt of Finney, and this he promises to pay. lie is liable to pay, although his promise is not in writing. He has received the consideration, and Ford proposes to make title and compel payment. Is there anything unreasonable in this ? This is no effort by the vendor to enforce specific performance of a farol contract for the sale of lands. A title bond was made to Ford, Bray & Co., and assigned to and accepted by Finney, who went into pos session of the land. In order to prevent circuity of action,; and to bring all the parties at interest before the Court, sol that full and complete justice may be done, this bill should! be maintained. Why compel Bell & Gaskill to collect the! money out of Ford, Bray & Co., and then Ford, Bray & Co.* have to sue Ford & Finney, and then Ford sue Finney, when! the rights of all the parties can be readily adjusted underf this bill?

It was insisted that the complainants have a complete and adequate remedy at law. Perhaps, under the Code, Section 3014-15, the parties might have accomplished at law what they propose by their bill; but, according to Section 3028, a mere privilege to a complainant to sue at law, or the existence of a common law remedy, shall not deprive Equity of jurisdiction. The remedy at law must be as complete and effectual as the equitable relief, in order to oust a Court of Equity of jurisdiction. We think, in this case, the remedy at law was not as complete as in equity. Taking the allegations in the bill to be true, we think Equity can do more complete justice between all the parties than law, and that the bill should have been sustained, and the rights of all the parties settled under it.

Judgment reversed.