10 Ga. App. 781 | Ga. Ct. App. | 1912
Mashburn sued Holcomb on a promissory note. The defendant admitted the execution of the note, but pleaded that Mashburn was indebted to him on an account in a sum larger than the note sued on. At the conclusion of the evidence the judge directed a verdict in favor of the plaintiff, and this is the error assigned.
It appears, from the evidence, that Mashburn was manager for,
There is no testimony that the defendant’s firm expressly released the Southern Soda Water Company from the indebtedness which it owed at the time of the agreement with Mashburn. It is very clear, however, from the testimony of Holcomb, that the agreement with Mashburn was that a loan of $500 would be made to him, provided he would pay or see paid the old account due by the company of which he was manager, and that this loan was actually made in pursuance of this agreement. This being so, there was such performance on one side and acceptance by the other as to take the agreement out of the statute of frauds and to bring it within the exception stated in the Civil Code (1910), § 3223. The same rule would apply to the future sales, but, in addition to this, the contract as testified to by Holcomb was an original, and not a collateral, undertaking on the part of Mashburn. See Maddox v. Pierce, 74 Ga. 838; Sext v. Geise, 80 Ga. 698 (6 S. E. 174) ;Fersl’s Sons v. Bank of Waycross, 111 Ga. 229 (36 S. E. 773); Evans v. Griffin, 1 Ga. App. 327 (57 S. E. 921). One test is whether the original debtor is still held liable, but this is not the only test; because, if the undertaking be a joint one on the part of the original debtor and the new promisor, the undertaking of the latter would still be an original promise, and not a collateral agreement to become security for the original debt. Cruse v. Foster, 76 Ga. 723. The fact that the coupon books were receipted for in the name of the corporation by one of its clerks might be a circumstance to determine whether the creditor still looked to the corporation for payment, but it is by no means conclusive on the question, and is subject to explanation. The financial condition of the Southern Soda Water Company, and Mashburn’s interest in the company, at the time the defendant claims he made the agreement with Mashburn, are proper subject-matter of inquiry, as circumstances tending to explain why Mashburn might have made the agreement testified to by the defendant. Judgment reversed.