Hicks v. Walker, 17 Ga. App. 391

Hicks v. Walker

17 Ga. App. 391 | Ga. Ct. App. | 1915

Russell, C. J.

Walker’s evidence showed that Clarke Mathis was a cropper on his place. Walker was approached by Hicks, who stated that he had traded with Mathis to work a two-horse farm for him the following year, and wanted to know what amount Mathis owed Walker. Walker stated that he did not know the amount of. *393the indebtedness, because he had not had a final settlement with Clarke. Thereupon Hicks stated that if Walker would allow Mathis to move Hicks’s place and carry with him the corn, etc., that he had raised on Walker’s place, he (Hicks) would pay Walker whatever, if anything, Mathis owed Walker when a settlement was had between them. Mathis moved to Hicks’s place and carried about $150 worth of stuff from Walker’s premises. Walker testified: “I released my claim against Clarke [Mathis] and charged it to Mr. Hicks when he agreed to pay same. He moved away and left some seven or eight bales of cotton in the field, which I gathered, or had gathered. After giving him credit for his part of the crop, he owed me $195.56. I would not have let Clarke move the stuff had Mr. Hicks not agreed to pay me.” The evidence also showed that Mathis was present when the agreement was made. Hicks’s defense was that he had not agreed to pay Mathis’s account, but had requested Walker to allow Mathis to remove his corn, etc.; Hicks testifying: “I told [Walker] . . that if his [Mathis’s] cotton did" not pay him out, his stuff at my place would be just as subject to his claim as at his own.” He contended also that he was led to beiieve by Walker that Mathis had a sufficient amount of cotton to pay .his indebtedness to Walker. It was also insisted by Hicks, both by demurrer and in his motion for new trial, that the indebtedness as against him was within the statute of frauds, and he could not be held responsible unless he had assumed the indebtedness in writing; and that there was no such assumption of the debt as the law required, to make it binding upon him. The court overruled the demurrer, and upon the trial the jury found for Walker in the sum of $109.25, Hicks made a motion for a new trial, on the grounds that the verdict was contrary to law and to the evidence. He excepts to the overruling of his motion for a new trial, as well as to the judgment upon the demurrer.

We see no error in either of the rulings excepted to. Under the evidence for the plaintiff, which was based upon the allegations of the petition, it certainly was the intent of the parties that the debtor, Mathis, be released, and that Hicks be substituted for him. This being true, the contract between Hicks and Walker was an original undertaking and was not required to be in writing, under the statute of frauds. Sapp v. Faircloth, 70 Ga. 690; Palmetto Mfg. Co. v. Parker, 123 Ga. 798 (51 S. E. 714); Ferst’s Sons & Co. *394v. Bank of Waycross, 111 Ga. 229 (36 S. E. 773); Harris v. Jones, 140 Ga. 768 (79 S. E. 841); Evans v. Griffin, 1 Ga. App. 327 (57 S. E. 921); Beard v. Hammock, 3 Ga. App. 118 (59 S. E. 335). It can not be seriously insisted that the contract was nudum pactum. Walker released possession and title to property which he held, and allowed it removed to Hicks’s place, to be used by Mathis in the making of a crop on Hicks’s place. Such a detriment, suffered by Walker in releasing his property and in releasing Mathis from the payment of the account, was a sufficient consideration. Indeed the mere release of Mathis and the substitution of Hicks as the debtor at Hicks’s request would have been a sufficient consideration. See Ferst v. Bank, Evans v. Griffin, Beard v. Hammock, supra; Pylant v. Well, 2 Ga. App. 171 (58 S. E. 329); Daniel v. Dickey, 6 Ga. App. 548 (65 S. E. 301). There can be no doubt that the plaintiff’s petition, under the decisions herein cited, set out a good cause of action, and that the verdict was sustained by evidence.

' The question collaterally raised, as to whether an agreement to be substituted for a debtor must be for an amount fixed, is settled, we think (certainly so in the absence of authority to the contrary), by the decision in Sext v. Geise, 80 Ga. 698 (6 S. E. 174). In that case Sext, who was having a house built by a contractor whom the lumber dealers did not consider safe and whose supply of lumber was about to be stopped, procured a continuance of the building by promising to pay the bill against the contractor for the lumber, and he was held liable for the amount of the lumberman’s bill, upon the theory upon which this suit is based. Sext did not promise to pay any certain amount; and we see no good reason why Hicks should be released from the payment of Mathis’s account simply because no fixed amount was agreed upon. In fact, the amount of Mathis’s indebtedness was not in dispute.

It is contended by Hicks that a new trial should be granted because the jury found against him for $109, instead of for $195, the whole amount sued for; his contention being that the verdict should either have been in his favor, or for the plaintiff for the full amount, since the amount of indebtedness was not in dispute. The evidence would have authorized a finding for the full amount. As to how or upon what reasoning the jury found their verdict, this court is without knowledge. It is sufficient for us that there was evidence authorizing the verdict returned; and a defendant will not be *395heard, under such circumstances, to complain that a verdict was rendered for the plaintiff for a less amount than he might legally have been entitled to recover. Baker v. Central Grocery Co., 15 Ga. App. 377 (83 S. E. 504); Myers v. Adams, 14 Ga. App. 520 (81 S. E. 595), and citations. Judgment affirmed.