Dillard v. Dillard

44 S.E. 885, 118 Ga. 97, 1903 Ga. LEXIS 462

• Court: Supreme Court of Georgia
• Decided: May 30, 1903
• Status: Published

Opinion

Lamab, J.

1. Where by mutual agreement a note was given by J. to A., the latter having accepted the former as a substitute for his original debtor, W., this was a novation, and the debt from W. to A. was abrogated. Ferst v. Bank, 111 Ga. 232.

2. The fact that it subsequently appeared that the note was for an amount greater than W’s indebtedness to A. would certainly not wholly defeat a recovery thereon.

3. Where there had been a novation and substitution as above set forth, an ex-ecutory agreement by A. to surrender this note and take another from J. for the correct amount, with a provision, that it was never to become due unless W. completed a contract to build a house for J., was not enforceable, being without any benefit or consideration moving to A. It was therefore error to dismiss the certiorari from a judgment that A. was not entitled to recover on the original note. Civil Code, §§3732, 3734.

Submitted May 6, — Decided May 30, 1903.

Certiorari. Before Judge Russell. Rabun superior court. August 28, 1902.

W. S. Paris, for plaintiff. J. B. Grant, for defendant.

Judgment reversed.

By five Justices.