54 Ga. App. 823 | Ga. Ct. App. | 1936
Mrs. Elizabeth W. Waxelbaum filed suit against Joseph Waxelbaum, alleging that he was due her a balance of $425, plus interest, on a contract dated March 4, 1905, between the defendant and her deceased husband, David Waxelbaum. In the contract, a copy of which was attached to and made a part of tbe petition, it was provided that for a certain named consideration Joseph Waxelbaum obligated himself to make, on the first' day of each month, a monthly payment of $25 to his brother, David Waxelbaum, which payments were to continue during the joint lives of the two brothers, and on the death of David Waxelbaum the monthly payments of $25 were to be made to the petitioner for and during her widowhood, and, should she not remarry, during her natural life. It was alleged that David Waxelbaum died early in 1932; that thereafter the defendant made the monthly
In the view that we take of the case it is necessary only to pass upon the general demurrer of the defendant. The cases in different jurisdictions are not in harmony as to whether or not a beneficiary under a contract can maintain a suit thereon in his own name, but it is clearly shown by the decisions in this State that the English rule prevails in Georgia. That rule is embodied in the Code, § 3-108: “As a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, shall be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent.” As suggested in that section, there are exceptions to the general rule, and the Reports of this State contain many cases in each class. In Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 345), Mr. Justice Lumpkin reviewed in the main the former decisions in point; and in Shropshire v. Rainey, 150 Ga. 566, 571 (104 S. E. 414), reference was made to cases falling under the general rule and those under the exceptions. From the cases so discussed the rule may be gathered, that, for the right to exist in a beneficiary to maintain in his own
It is argued that Mrs. Waxelbaum could maintain a suit under the Code, § 20-306: "If there be a valid consideration for the promise, it matters not from whom it moves; the promisee may
Judgment reversed on the main bill of exceptions ; Cross-bill dismissed.