Christian v. Wood Bros.

137 S.E. 852, 36 Ga. App. 707, 1927 Ga. App. LEXIS 261

• Court: Court of Appeals of Georgia
• Decided: April 16, 1927
• Docket: 17647
• Status: Published

Opinion

Jenkins, P. J.

“Where a storekeeper lets A have goods, on the verbal promise of B that he will see that the debt is paid, and the storekeeper charges the account to both A and B, and, upon the failure of both to pay the account, files suit against both, the contract, so far as B is concerned, must be construed as merely one of suretyship and not an original undertaking; and B’s promise to pay, not having been made in writing, is void and not binding upon him.” McAfee v. Benson, 21 Ga. App. 309 (94 S. E. 328); Reynolds v. Simpson, 74 Ga. 454; Few v. Hilsman, 18 Ga. App. 207 (89 S. E. 79); Cordray v. James, 19 Ga. App. 156 (91 S. E. 239); Trapnell v. Bird, 21 Ga. App. 21 (2) (93 S. E. 498); Cooper v. Cochran Cotton Mills, 30 Ga. App. 343, 344 (118 S. E. 68); Casteel v. Allgood-Frey-Shaw Co., 31 Ga. App. 107 (119 S. E. 456); Nevil v. Trapnell-Mikell Co., 31 Ga. App. 207 (120 S. E. 430); Easterling v. Bell, 29 Ga. App. 465 (116 S. E. 50); Cruse v. Foster, 76 Ga. 723 (b). It appearing in the instant case, by the account sued on and introduced in evidence, that the goods were charged to both the party receiving them and the plaintiff in error, and that both parties were sued thereon, under the principle announced by the foregoing authorities the promise of the plaintiff in error, not being in writing, was not enforceable, under the defendant’s plea, and the verdict rendered against her must be set aside.

Judgment reversed.

Stephens and Bell, JJ., concur. J. R. Irwin, for plaintiff in error. J. H. McCalla, C. R. Vaughn, contra.