Charles Campbell & Co. v. Brown

20 Ga. 415

• Court: Supreme Court of Georgia
• Decided: June 15, 1856
• Docket: No. 74
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] There was some confusion in the charge of the Court?' in submitting the law of this case to the Jury, resulting, perhaps, from the indistinctness of the proof. While a mere-agreement, on the part of Campbell & Co. not to collect the-residue of their debt out of Goodwin, would not be binding for want of consideration; and while the consent of Goodwin, that the overplus of the fund in the hands of Campbell' & Co. might be applied to the open account debt of theirs. against him, would not be a siffficient consideration, inasmuch as Goodwin was bound to pay all his debts — and this book account among the rest. Yet, if it was stipulated between Campbell & Co. and Goodwin that they might sell his land,., and putting his property in their hands for this purpose, and:, they to apply the proceeds — and they, in consideration thereof, undertook and bound themselves not to enforce the payment of the balance of the execution out of him, it would, in the opinion of this Court, constitute a valid agreement which might be enforced, and which, if executed, would amount to a release of Goodwin, one of the co-defendants; and consequently, discharge Brown and Harris the other two.

But the proof as to this agreement, is too v-ague and indefinite. It is to be gathered, if at all, from inference only.

We see no objection to the competency of the witness, Montmollin.