87 Ga. 474 | Ga. | 1891
According to the declaration, the plaintiff had a statutory lien upon a saw-mill of Wilcox & Cleland for logs and timber, amounting to $468.70. With notice of that lien, Wilcox, Stilson & Co. purchased the mill, after which the plaintiff was about to proceed to foreclose and enforce his lien, but was prevented from so doing by the undertaking of the latter firm, who promised and agreed with the plaintiff that they would pay him the sum due from the former if he would indulge them a few days and not proceed at
The rule of pur code is that a promise to answer for the debt of another must be in writing, signed by the party to be charged therewith or some person by him lawfully authorized; otherwise it is not obligatory. An exception to the rule exists, however, “ where there has been performance on one side, accepted by the other, in accordance with the contract.” Code, §§1950,1951. Here the plaintiff alleges full performance on his part; he gave the stipulated indulgence, and continued to furnish logs and timber so long as the defendants continued in the business, and until they dissolved partnership. They took the benefit of the plaintiff’s performance, and having done so, they are not in a condition to allege the statute of frauds, modified as it has
The court erred in sustaining the demurrer. Consequently, a new trial is necessary. Judgment reversed.