Wright v. Threatt

146 Ga. 778 | Ga. | 1917

Hill, J.

(After stating the foregoing facts.) Did the court err in sustaining the motion to strike, and in dismissing the joint answer of Boddie and Wright, and in entering the judgment to which exception is taken ? It appears from the answer that Boddie held an account against the estate of Willie Threatt, for medical attention furnished during the lifetime of Threatt; and that Wright held an account against the estate of Threatt, for expenses incurred in connection with the burial of Threatt. It does not appear that these two accounts were incurred at the request of Sarah Threatt. The bills of particulars attached to the pleadings were made out against “Willie Threatt, Dr.;” but it was averred that at the time and before the powers of attorney were given to Boddie and Wright by Sarah Threatt, she gave to each of them a contract in writing in which she agreed to answer for the debt or debts of her deceased brother, Willie Threatt. These writings bear date ten days after the date of the itemized accounts of Boddie and Wright. It is insisted that the written contracts were bona fide and voluntarily entered into by Sarah Threatt to answer for the debts of her brother which Boddie and Wright held against him and His estate, and were binding on her. The one.given to Boddie was in part as follows: “I hereby agree to pay to Dr. W. F. Boddie the sum of forty-eight ($48) dollars, the same being the amount due him by my deceased brother, Willie Threatt, late of Monroe County, Georgia, who died on the 17th day of April, 1915.” It seems clear from the facts in this case that Sarah Threatt was not originally liable for these accounts of the codefendants. It is true she subsequently entered into a written promise to pay these claims, and gave powers of attorney authorizing the codefendants to collect certain sums due her by the insurance company and to have such sums applied to their claims; but the powers of attorney were subsequently revoked by her. A promise to answer for the debt, default, or miscarriage of another, in order to be binding, must be in writing (Civil Code, § 3222, par. 2), and be supported by a consideration; it is nudum pactum unless some benefit accrues to the debtor or to the promisor. Civil Code, § 4241; Davis v. Tift, 70 Ga. 53 (2), 56; Russell v. Smith, 97 Ga. 287 (23 S. E. 5); Johnson v. Rycroft, 4 Ga. App. 547 (2c), 549 (61 S. E. 1052); Beach on Modern Law of Contracts (1896), § 505; 9 Cyc. 319; 29 Am. & Eng. Ene. L. (2d ed.) 910. The only consideration stated in the written contracts in this case was “the love and affection” which the promisor, Sarah Threatt, had for her deceased brother. It is insisted that this is a sufficient consideration to support the contracts. We think otherwise. While love and affection as a consideration for a written contract to- answer for the debt, default, or miscarriage of another may bind the conscience' of the maker, it can not support an executory contract to answer for the debt, default, or miscarriage of another, unless some damage flows from the breach, or the contract is supported by a legal consideration in addition to the moral. Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 61 L. R. A. 148, 97 Am. St. R. 171); Loudermilk v. Loudermilk, 93 Ga. 443 (21 S. E. 77). We think the court' below was right in striking the answer of the codefendants, and in entering the judgment to which exception is taken.

Judgment affirmed.

All the Justices concur.