McAfee v. Benson Bros.

94 S.E. 328, 21 Ga. App. 309, 1917 Ga. App. LEXIS 569

Opinion

Broyles, P. J.

1. 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. Reynolds v. Simpson, 74 Ga. 454; Harris v. Paulk, 10 Ga. App. 334 (73 S. E. 430); Few v. Hilsman, 18 Ga. App. 207 (89 S. E. 207) ; Cordray v. James, 19 Ga. App. 156 (91 S. E. 239) ; 20 Cyc. 180, E.

2. Under the ruling in the preceding note, and the facts of this case, W. A. McAfee was not liable to the plaintiff for the debt of J. A. Mc-Afee, and the verdict against him was contrary to law and the evidence; and the court erred in refusing his motion for a new trial. , . -

3. The foregoing ruling being controlling in the case, it is unnecessary to consider the grounds of the amendment to the motion for a new trial. The costs of this writ of error ax-e taxed against the defendant in. error.

Judgment affirmed as to J. A. McAfee; reversed as to W. A. McAfee.

Bloodworth and Harwell, JJ., concur.