Holcombe v. Parker

109 S.E.2d 348, 99 Ga. App. 616, 1959 Ga. App. LEXIS 917
CourtCourt of Appeals of Georgia
DecidedMay 26, 1959
Docket37653
StatusPublished
Cited by4 cases

This text of 109 S.E.2d 348 (Holcombe v. Parker) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holcombe v. Parker, 109 S.E.2d 348, 99 Ga. App. 616, 1959 Ga. App. LEXIS 917 (Ga. Ct. App. 1959).

Opinion

Qxjillian, Judge.

At the outset it must be observed that the defendant filed no issuable defense as his answer was evasive in refusing to admit or deny the indebtedness. McIntyre v. Harrison, 172 Ga. 65, 71 (157 S. E. 499). See also Moore v. Calvert Mortgage & Deposit Co., 13 Ga. App. 54 (3) (78 S. E. 1097), in which it said: “An answer averring merely that the defendant can neither admit nor deny a specified paragraph, without adding that he is without sufficient information upon which to base either an admission or denial, must be treated as an admission.” Had the plaintiff elected to move that the case be marked in default, under the authority of Code (Ann.) § 110-401 and the case of Grogan v. Herrington, 79 Ga. App. 505 (1) (54 S. E. 2d 284) he would have been entitled to a judgment for the account sued' upon.

The plaintiff chose to go forward with the proof of his case and made no motion that the case be marked in default. In these circumstances the nonsuit was proper unless he proved eveiy material allegation of the petition and disclosed no defense filed to his right to recover. Fleming v. E. I. Du Pont de Nemours & Co., 89 Ga. App. 837 (81 S. E. 2d 529); Darn v. Wiseman, 94 Ga. App. 216 (94 S. E. 2d 65).

The only proof offered by the plaintiff was that given by him as a witness, sworn in his own behalf. The plaintiff contends on direct examination that he did- the work that constituted the consideration of the account sued upon for the defendant and that the account was just, due, true, and unpaid made out a *619 prima facie case. Standing alone the testimony referred to was sufficient to prevent a nonsuit, and indeed would have authorized a recovery for the full amount of the account. But the plaintiff on cross-examination gave in detail the facts upon which he predicated his cause. If these facts did not, when considered as a whole, authorize the submission of the case to the jury, the trial judge was right in ordering the nonsuit. Here the holding in Evans & Pennington v. Schofield’s Sons Co., 120 Ga. 961 (48 S. E. 368) is applicable: “Where the plaintiff relies upon the testimony of a single witness, and the evidence upon the direct examination is of such a character as to authorize an inference supporting the claim of the plaintiff, but upon the cross-examination of the witness it develops that this inference can not be properly drawn, a nonsuit should be granted.”

The standard by which the question as to whether a nonsuit is legally ordered must be determined. The rule previously stated is that the plaintiff’s proof will prevent a nonsuit when it makes out a prima facie case in his behalf, without revealing a reason why he is not entitled to recover.

The plaintiff testified that he never came, in contact with the defendant until after he completed his agreement with King to open a ditch and lay pipe as contemplated by that agreement, and that he knew of no right either the contractor King, or a plumber through whom King employed him, had to contract with him on behalf,of the defendant.

The plaintiff insists that the defendant, by accepting the work done -under the contract between the plaintiff and King, ratified the action of King as his agent in obtaining the benefit of the services and became bound to pay for the same. As supporting authority for his position the plaintiff cites Jacksonville Paper Co. v. Owen, 60 Ga. App. 742, 743 (5 S. E. 2d 103) in which is the pronouncement: “The defendant could not permit the goods to be used for his benefit and defeat an action for the purchase-price by denying the authority of his agent to purchase them. Such permissive, action is tantamount to the implied authorization of the purchases.” A case we think more in line is Gignilliat v. West Lumber Co., 80 Ga. App. 652 (2) (56 S. E. 2d 841): “A materialman can not recover a general per *620 sonal judgment against the owner of the land for the material furnished in placing improvements thereon, unless it be shown that he is a party to the contract for the purchase of the material.” In Jacksonville Paper Co. v. Owen, supra, the person who purchased the goods of the plaintiff purported to act on behalf of the defendant and did not enter into the sales contract as an individual acting for himself alone.

In Greene v. Golucke, 202 Ga. 494 (2) (43 S. S. 2d 497) it is held: " ‘The doctrine of ratification is not applicable against a person as to an act of one who did not assume to act in his name or under authority from him.’ Swicord v. Waxelbaum, 23 Ga. App. 297 (98 S. E. 817).”

The mere fact that the defendant, who was the owner of the house at which the plaintiff opened the ditch and laid pipe under an agreement with a contractor, called the plaintiff’s attention to the fact that the line was torn up and the pipes not connected and requested that he inspect it, did not, since the work was done for the contractor King, amount to an adoption of the King contract or assumption of liability for the value of the work done by the defendant for the account of King. That an owner calls a subcontractor’s attention to a defect in work done on the former’s premises certainly does not render the owner liable for the work. Moreover, the evidence does not disclose which sewer line was torn up and the pipes not connected, that is, whether it was on the pipe line laid for King or on the line of pipe the defendant employed the plaintiff to install.

But the plaintiff strongly relies upon the promise of the defendant to pay for all of the services rendered by him including the work done under his contract with King. He asserts that the promise amounted to am original undertaking on the part of the defendant and hence was valid though not in writing. An original undertaking recognized by our law as legal and enforceable whether in writing or parol is an engagement on the part of the promisor to answer for credit extended to another. The promise like all other contractual undertakings must be based upon a consideration. The -consideration may be an advantage to the promisor, a detriment to the promisee or a benefit flowing *621 to a third person. Ferst’s Sons & Co. v. Bank of Waycross, 111 Ga. 229 (36 S. E. 773). A promise to answer for a debt for the payment of which another is bound, and the promisor is not otherwise liable, must be upon a new consideration, that is, a consideration other than and in addition to that upon which the obligation of the original debtor is based. Many are the supporting authorities for this pronouncement including the holding in Smith v. Missouri State Life Ins. Co., 45 Ga. App. 383 (165 S. E. 168); Bradbury v. Morrison, 93 Ga. App.

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Bluebook (online)
109 S.E.2d 348, 99 Ga. App. 616, 1959 Ga. App. LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holcombe-v-parker-gactapp-1959.