McClain v. Dacus

Court of Appeals of Georgia

McClain v. Dacus

111 S.E. 581, 28 Ga. App. 303, 1922 Ga. App. LEXIS 465

CourtCourt of Appeals of Georgia

DecidedMarch 7, 1922

Docket12866

StatusPublished

This text of 111 S.E. 581 (McClain v. Dacus) 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

McClain v. Dacus, 111 S.E. 581, 28 Ga. App. 303, 1922 Ga. App. LEXIS 465 (Ga. Ct. App. 1922).

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Opinion

Bloodwobth, J.

The court did not err in striking the plea filed by the defendant, nor in thereafter directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Broyles, C. J., and, Luke, J., concur.

The demurrer is on the following grounds: No defense is set out in the plea. Paragraph 5 is demurred to on the ground that it is not alleged that the defendant ever requested the plaintiff to execute a deed to the land, or that the defendant’s not having the deed hindered him from procuring the loan, or that the execution of the deed would have enabled him to procure the loan; the statement that he was unable, because of conditions beyond his control, to secure the loan, is a mere conclusion of the pleader, not based on facts authoiizing it; and it is not shown that the plaintiff contributed to such conditions, and said statement sets up no sufficient cause for failure to pay the note. Paragraph 6 is demurred to because it appears that the understanding, contract, and agreement there mentioned was not reduced to writing or signed by the plaintiff or by any person authorized by him, within .the meaning of the statute of frauds (Civil Code, § 3333 et seq.), and it appears from the defendant’s answer that the contract between him and the plaintiff was reduced to writing and signed by the parties, and the allegations in paragraph 6 seek to add to and vary the terms of said written agreement.

Maddox, McCamy & Shumate, for plaintiff in error. J. G. B. Erwin Jr., contra.

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Bloodwobth, J.

The court did not err in striking the plea filed by the defendant, nor in thereafter directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Broyles, C. J., and, Luke, J., concur.

The demurrer is on the following grounds: No defense is set out in the plea. Paragraph 5 is demurred to on the ground that it is not alleged that the defendant ever requested the plaintiff to execute a deed to the land, or that the defendant’s not having the deed hindered him from procuring the loan, or that the execution of the deed would have enabled him to procure the loan; the statement that he was unable, because of conditions beyond his control, to secure the loan, is a mere conclusion of the pleader, not based on facts authoiizing it; and it is not shown that the plaintiff contributed to such conditions, and said statement sets up no sufficient cause for failure to pay the note. Paragraph 6 is demurred to because it appears that the understanding, contract, and agreement there mentioned was not reduced to writing or signed by the plaintiff or by any person authorized by him, within .the meaning of the statute of frauds (Civil Code, § 3333 et seq.), and it appears from the defendant’s answer that the contract between him and the plaintiff was reduced to writing and signed by the parties, and the allegations in paragraph 6 seek to add to and vary the terms of said written agreement.

Maddox, McCamy & Shumate, for plaintiff in error. J. G. B. Erwin Jr., contra.

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111 S.E. 581, 28 Ga. App. 303, 1922 Ga. App. LEXIS 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclain-v-dacus-gactapp-1922.