Bank of Bowdon v. Lovvorn Grocery Co.

131 S.E. 301, 34 Ga. App. 772, 1926 Ga. App. LEXIS 12

Opinion

Broyles,. O. J.

1. The overruling of the demurrer to the amended petition was not error.

2. Where a contract is pleaded, it is not necessary, even though the contract be within the statute of frauds, to allege that it was in. writing.. Upon demurrer it will be presumed that the contract was in writing, unless the averments of the pleadings distinctly show the contrary. Ansley v. Hightower, 120 Ga. 719 (3) (48 S. E. 197). Under this ruling and the facts of the instant case, the overruling of the demurrer to the-defendant’s plea did not establish as the law of the case that the agreement set up in the plea was not within the statute of frauds.

3. Under the evidence adduced, the court did not err in directing the verdict for the defendant in error.

Judgment affirm,ed.

Lulce and Bloodworth, JJ., concur. Boykin & Boykin, for plaintiff in error. B. D. Jackson & Son, contra.