Fuller v. Holsomback

156 S.E. 460, 42 Ga. App. 483, 1931 Ga. App. LEXIS 18

Opinion

Jenkins, P. J.

1. “Where a creditor, his debtor, and a third person who owes the debtor agree in parol that such third person shall be substituted for the debtor and that the latter shall be released, the case is not within the statute of frauds, so as to require the agreement to be in writing, but the debt is extinguished as to the debtor, and the third person becomes, by substitution, the debtor in his place.” Sapp v. Faircloth, 70 Ga. 690; Palmetto Mfg. Co. v. Parker, 123 Ga. 798, 800 (51 S. E. 714) ; Harris v. Jones, 140 Ga. 768 (79 S. E. 841) ; Holt v. Empire Tire & Rubber Co., 33 Ga. App. 723, 725 (127 S. E. 803).

2. In the instant case the petition alleged that the defendant purchased certain machinery which the plaintiff had sold to a third person, and assumed the purchase-money notes which the third person had executed to the plaintiff, and that the plaintiff agreed to substitute the defendant for the original purchaser as his debtor. The jury found in favor of the plaintiff. No exception is taken to the rulings on demurrer, the only error assigned being upon the judgment overruling the defendant’s motion for a new trial, which contains only the usual general grounds: Under the foregoing ruling, the evidence, while in conflict, authorized the finding in favor of the plaintiff, and the verdict can not be here set aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.