Wilson v. First Presbyterian Church

| Ga. | Jul 15, 1876

Jackson, Judge.

Suit was brought by certain persons for the use of the church against the defendant for subscription to complete the church building. The nominal parties were stricken by amendment, and the action proceeded in the name of the church. The subscription was a “promise to pay the amount set opposite our several names,” and is fully set out in the head-notes to this case. The defendant moved from Savannah to Atlanta, and refused to pay his subscription. Work was not actually begun when he sold his residence and left Savannah, but plans were submitted to the building committee, and specifications for the work prepared for the contractors to examine and bid on before he left. The treasurer of the church gave time for one subscriber to pay and took his note without interest, which was paid. The jury found for the plaintiff $500 00, without interest. The defendant moved for a new trial, and the court overruled it, and the case is before us on the errors assigned.

1. The first error is that the court should have dismissed when the amendment waS made. The amendment merely struck out the nominal party, leaving the real party to go on with the case. If a right of action remains in the real party in interest, if that party could have sued in its own name at first, we cannot see why the amendment dispensing with a mere nominal party should not have been allowed. A declaration may be amended by striking out the names of one or more plaintiffs: Code, section 3486; 24 Georgia Reports, 516; 25 Ibid., 58. If so, why not by striking out a nominal plaintiff.

2. The right of action was in the church. The promise, we think, was in effect made to the church, the consideration was the mutual promises, and the work done and to be done, the plansand specifications having been actually made outbeforedefendant leftSavannah, and we think the contract valid and vested in the church the right of action. A consideration may move from one and the promise be good to another: Code, sections 2744, 2747; 35 Georgia Reports, 258.

3. There is nothing in defendant’s removal from Savannah, unless he had only agreed to pay if he remained in Savannah, of which there is no proof. Nor was his removal any evidence that he withdrew his subscription. If no expenses had been incurred before he left Savannah, his change of residence would not have discharged him; but specifications were made and bids asked for by publication before he left, which cost money.

4. Nor do we think he is discharged • by the fact that the treasurer gave time to another subscriber and let him off without exacting interest. The contract was not so joint, and the several promises so dependent on each other as to relieve all the rest by indulging one, or letting one off without making him pay interest. Nor is there proof that the treasurer acted in tiie matter by the direction of the church so as to bind it: 20 Georgia Reports, 36.

5. An oral request, pending the argument to the jury, was made to the court in respect to reasonable time to begin work, or the defendant was released, which the court did not notice. If the counsel insisted on his request he should have put it in writing. Besides, we do not think the delay in beginning the work unreasonable, and we think the jury would have made the same verdict if the charge had been made. The verdict is amply supported by law and evidence.

Judgment affirmed.