11 Ga. App. 350 | Ga. Ct. App. | 1912
Wilkins brought suit against Barnes in a justice’s court, on an account, and the case was appealed to the superior court. In the latter court the presiding judge, at the conclusion of the plaintiff’s evidence, directed a verdict for the defendant; and the, plaintiff excepted. The facts are as follows: The plain
At the conclusion of the evidence the defendant moved for a nonsuit, and the court stated that the defendant could take either a verdict or an order of nonsuit. The defendant elected to take a verdict. The proper procedure would have been the grant of a nonsuit, if the plaintiff was not entitled to recover under the evidence. This fact is immaterial, however, in view of the fact that we think it very clear, under the undisputed evidence, that the agreement which the defendant made to repay the plaintiff the money which the boy had spent was a mere nudum pactum and was not enforceable. It is insisted by the defendant that the ease is within the statute of frauds, and the agreement- to pay, not being in writing, was void. It is insisted by the" plaintiff that it was an original agreement, and further that the payment by the plaintiff of the $4 was such part performance of the contract as would take it out of the statute. Irrespective of whether the case is within the statute of frauds or not, as the contract would have been without any consideration even if it had been in writing, the question is unimportant. We affirm the judgment because, under the admitted facts, the contract sued upon was simply nudum pactum.
It is contended by the plaintiff that the contract was a binding obligation on the parent because it was an assumption by the father