McAfee v. Benson Bros.

Court of Appeals of Georgia

McAfee v. Benson Bros.

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

CourtCourt of Appeals of Georgia

DecidedNovember 14, 1917

Docket9020

StatusPublished

Cited by2 cases

This text of 94 S.E. 328 (McAfee v. Benson Bros.) 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

McAfee v. Benson Bros., 94 S.E. 328, 21 Ga. App. 309, 1917 Ga. App. LEXIS 569 (Ga. Ct. App. 1917).

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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.

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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.

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Bluebook (online)

94 S.E. 328, 21 Ga. App. 309, 1917 Ga. App. LEXIS 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcafee-v-benson-bros-gactapp-1917.

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