105 Ga. 26 | Ga. | 1898
An action was brought by White & Company against Mrs. M. P. J ones, upon a promissory note, due •one day after its date, payable to J. Ployd Jones, or bearer, who had died before the suit was begun. The defense set up in the defendant’s answer, in substance, was that Mrs." Jones, in the lifetime of J. Ployd Jones, had settled and paid off this mote under an agreement with him whereby she credited him with the amount thereof upon an open account against him for board, and that the plaintiffs had acquired possession of the' mote after his death and long after its maturity. There was a ■verdict for the defendant. The plaintiffs’ motion for a new trial was overruled, and they excepted.' The following questions are presented by the record.
There was some evidence tending to show that J. Floyd. Jones had contracted to pay Mrs. Jones $20.00 per month for board. In addition to this, the court allowed her to testify that the, board of J. Floyd Jones was reasonably worth this-amount per month. This evidence was objected to on the-ground that, -as the defendant had pleaded and attempted to-prove an express contract, “evidence in the nature of a quantum meruit was inadmissible.” In point of fact, the defendant did not plead that J. Floyd Jones expressly agreed to pay her any stated monthly sum for board. Her defense was that she had settled the note he held against her with the account for board which she held against him. Accordingly, it -was competent for her to prove the origin of her demand against him, either by showing an express or an implied contract on his part, as the plaintiffs had not, by special demurrer, called upon her to state specifically in her plea the precise manner in which her alleged claim against the deceased arose.
Judgment affirmed.